 Paraffin Test

• People vs de Guzman 250 SCRA 118

 Polygraph Test
• People vs Adoviso 309 SCRA 1
 Res Ipsa Loquitor
• Batiquin vs CA 258 SCRA 334
 Human Behavioral Response
• People vs Plazo 350 SCRA 433
• People vs Lilo 396 SCRA 624
• People vs Bates 400 SCRA 95
 Falsus in Uno, Falsus in Omnibus
• People vs Ducay 225 SCRA 1

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 116730 November 16, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
WILFREDO DE GUZMAN, accused-appellant.
PUNO, J.:
Accused-appellant WILFREDO DE GUZMAN was convicted of the crime of
MURDER by the Regional Trial Court of Dagupan City, Branch 43, 1 on the
basis of circumstantial evidence. He pleads for his acquittal, the Solicitor
General agrees and we find merit in the plea. We hold once more that the
great goal of our criminal law and procedure is not to send people to the
gaol but to do justice especially to the innocent.
The information against accused-appellant reads:
That on or about August 9, 1993 in the evening along the road of Malanay-
Tuliao, municipality of Sta. Barbara, province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a handgun, with intent to kill, treachery and evident
premeditation, did, then and there wilfully, unlawfully and feloniously
shoot DIOSDADO CAPURNO y SANTOS inflicting upon him gunshot wounds
which caused his instant death, to the damage and prejudice of his heirs.
CONTRARY to Article 248, Revised Penal Code.
When arraigned on February 8, 1994, accused-appellant pleaded not
guilty. 2 He underwent trial.
The facts show that in the evening of August 9, 1993, the lifeless body of
DIOSDADO CAPURNO, a tricycle driver, was found lying along the road of
Malanay-Tuliao in Sta. Barbara, Pangasinan. The victim sustained several
stab wounds on his body and a single gunshot wound on the forehead.
Dr. Cristito Garcia, Rural Health Physician of Sta. Barbara, Pangasinan,
autopsied the victim's body. His examination revealed that some of the
stab wounds penetrated the victim's vital organs, particularly the heart
and the right lung. The gunshot wound and the stab wounds were
considered fatal. 3
The Exhumation Report 4 prepared by Dr. Ronald Bandonill, Medico-Legal
Officer of the National Bureau of Investigation (NBI) in Baguio City, showed
a more detailed list of the injuries suffered by the victim, thus:
1. Hematoma, above the eyebrow;
2. Peri-orbital hematoma;
3. Hematoma, occipital area, right;
4. Contusion, shoulder, right;
5. Gunshot wounds � Entrance:
0.7 cm. x 0.8 cm. behind the left external auditory meatus making an exit:
1.5 cms. behind the right external auditory meatus;
6. Stab wounds
1. 2 in number, one on top of the other, area, of 6.0 cms. x 5.0 cms. on the
chest;
2. 4.0 cms. irregular still on the chest
3. 4.0 cms. ovaloid, edges clean cut in the lumbar area.
7. Scalp hematoma;
8. Fracture, cranial fossa, right;
9. Intracranial Hemorrhage, massive, generalized;
10. Hemopericardium, Massive;
11. Hemoperitoneum, Minimal;
12. Visceral organs are pale.
Dr. Garcia concluded that more than one (1) person attacked the victim.
Dr. Bandonill shared the same opinion. 5
The prosecution presented JAYSON LOPEZ to prove its case against the
appellant. He testified that, at about 9:00 p.m., of August 9, 1993, he was
at the junction leading to Barangay Malanay when he spotted Diosdado
Capurno's tricycle at the waiting shed. When the tricycle started towards
Malanay proper, he chased it and shouted at Diosdado to wait for him. The
tricycle stopped 6 and he was about to aboard it when one of the
passengers told him that they had already hired it. A passenger jeepney
same from the opposite direction and its headlights illuminated the area.
Lopez got a glimpse of Diosdado's three (3) passengers. They were Ismael
Ico, Conrado de Vera, and another passenger whom Lopez did not know. 7
It was De Vera, the incumbent barangay captain of Malanay, who
dissuaded him from riding the tricycle. Lopez was left without any option
and he walked the road leading to Barangay Malanay.
Soon, Diosdado's tricycle overtook Lopez but it stopped after negotiating a
short distance. Thereafter, Lopez saw Diosdado run and shout for help. Two
(2) men appeared from the right side of the road, blocked Diosdado's path,
and mauled him. Lopez did not recognize the two (2) men due to darkness.
For his own safety, Lopez hid himself from the assailants. Lopez then saw
De Vera and Ico chase Diosdado. He heard two (2) gunshots but did not
see the gun-wielder because of the commotion. Moments later, De Vera
instructed his companions to check the surroundings. Ico looked at the
back of the tricycle and found nobody. The five (5) assailants then headed
towards Malanay proper, leaving the fallen Diosdado behind. Engulfed with
fear, Lopez did not proceed to Malanay. Instead, he returned to the
junction and boarded a bus bound for Dagupan City. 8
In the morning of August 29, 1993, Lopez claimed he happened to ride the
tricycle of accused-appellant Wilfredo De Guzman. Along the way, an
acquaintance of accused-appellant also boarded the tricycle. They struck a
conversation. Lopez' co-passenger mentioned to accused-appellant the
latter's rumored involvement in a case. Accused-appellant replied, "I do
not know what to do." Lopez' co-passenger advised accused-appellant,
"You can't do otherwise but tell the truth." A curtain of silence descended
on accused-appellant. 9
The prosecutor also presented CHRISTOPHER CAPURNO, nephew of
Diosdado. He recalled that on August 9, 1993, at around 7:00 p.m., his
uncle's tricycle was hired by Arsenio Cabral. Arsenio, Christopher and his
stepfather, Delfin Bolinas, were to attend the "Pamamahayag" at the
Iglesia ni Kristo Chapel in Sta. Barbara. Diosdado was to wait for them at
the junction of Barangay Malanay. When they returned to the said junction,
Christopher saw accused-appellant with his tricycle parked beside
Diosdado's tricycle. Accused-appellant was also waiting for passengers for
his tricycle. 10
Christopher, Arsenio and Delfin boarded Diosdado's tricycle on their way
home. When they were about to leave, barangay captain De Vera, who
was then with Ico and an unidentified companion, told Diosdado to fetch
them back. 11 Diosdado agreed and proceeded to bring his passengers to
Malanay. That was the last time Christopher saw his uncle Diosdado alive.
At around 9:00 p.m., while preparing to go to bed, Christopher heard two
(2) gunshots. 12
The following day, at about 8:00 a.m., Christopher went to the residence of
accused-appellant to look for his uncle Diosdado. Accused-appellant
allegedly told him, "Your uncle was (sic) already in the morgue being
swarmed with flies." 13
In his initial sworn statement, 14 dated August 11, 1993, Christopher
tagged Barangay Captain De Vera as the last person who hired Diosdado's
tricycle that fateful evening. The following day, he executed another
statement and included the names of accused-appellant and Arsenio
Cabral, among others, as probable culprits. 15 Christopher charged that
Diosdado and accused-appellant were not in good terms. Allegedly,
accused-appellant was grabbing ("sinusulot") Diosdado's passengers. He
also revealed that accused-appellant has a .38 caliber gun which, at one
time, he brandished to Diosdado, with the words: "I am confident to drive
during night time because I have this (gun)."
The prosecution also presented the nitrate report on accused-appellant.
On August 11, 1993, barangay captain De Vera and accused-appellant
were examined for the presence of nitrates. Chemistry Report No. C-93-
839, 16 dated August 31, 1993, revealed that accused-appellant's left hand
was positive for nitrates. 17 De Vera's paraffin cast, on the other hand,
yielded negative results.
In a Decision, dated June 2, 1994, accused-appellant was found guilty of
murder. He was sentenced to suffer the penalty of reclusion perpetua. He
was further ordered to pay the victim's legal heir the following: P50,000.00
as indemnity, P30,000.00 as moral damages, P15,000.00 as actual
damages, with costs. 18
Hence, the appeal.
We required the Office of the Solicitor General to file the appellee's brief. In
lieu thereof, it filed a Manifestation and Motion, recommending the
acquittal of accused-appellant on reasonable doubt.
In the case at bar, the trial court cited several circumstances to justify the
conviction of accused-appellant, thus:
1. A few hours before the killing, accused appellant was seen at the
junction leading to Brgy. Malanay, Sta. Barbara, Pangasinan several meters
away from the crime scene;
2. The day after the murder, accused-appellant sarcastically told
Christopher Capurno: "Your uncle was (sic) already in the morgue being
swarmed with flies.";
3. The victim and the accused-appellant were not in good terms because
accused-appellant was taking some of the victim's passengers. Accused-
appellant owns a .38 caliber gun, which he brandished to the victim
boasting that he was confident to operate his tricycle at night because of
his gun;
4. The August 29, 1993 conversation between accused-appellant and his
acquaintance which was allegedly overheard by Lopez while Lopez was
riding the tricycle of accused-appellant.
5. Several suspects, namely, Brgy. Captain Conrado De Vera, Ismael Ico,
Roger Loresco, Teofilo Bernardino, Virgilio Santos, Arsenio Cabral, and
Rupino Abon, were tested for the presence of nitrates. Only accused-
appellant's paraffin cast yielded positive results for the presence nitrates.
Patently, there is no direct evidence linking the accused-appellant to the
killing of Diosdado Capurno. The present appeal thus hinges on the
sufficiency of the circumstantial evidence presented against the accused-
appellant. Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt.
No inflexible rule has been formulated as to the exact quantity of
circumstantial evidence which will suffice for conviction. All that the case
law requires is that the circumstances proved must be consistent with
each other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with the hypothesis that he is innocent, and
with every other rational hypothesis except that of guilty. 19 In accord with
the constitutional presumption of innocence, jurisprudence also holds that
where the inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with innocence and the other with
guilt, the evidence does not fulfill the test of moral certainty and is not
sufficient to convict an accused. 20
Prescinding from these premises, we agree with the recommendation of
the Solicitor General that the accused-appellant should be acquitted. The
various circumstantial evidence relied upon by the trial court are too
equivocal to justify his conviction.
We hold that there was nothing unusual about the presence of accused-
appellant at the junction leading to barangay Malanay a few hours before
the murder of the victim. It was established that tricycle drivers who ply
the Malanay-Tuliao route normally wait for their passengers in the said
junction. The records do not show that accused-appellant displayed any
kind of hostility while posted at said junction waiting for the customary
passengers. His presence at the junction cannot lead to any inference that
he killed the victim a couple of hours later.
Similarly, we cannot convict accused-appellant on the basis of his August
29, 1993 conversation with an unidentified co-passenger of Lopez. The
conversation allegedly went as follows: 21
(PROS. DUMLAO)
Q: While you and that person beside you were riding in that tricycle being
driven by Wilfredo de Guzman . . ., what happened next. . . .?
(WITNESS)
A: The person who rode in the tricycle gave greeting to Wilfredo de
Guzman, sir.
Q: And what did Wilfredo de Guzman say, if he said anything?
A: Wilfredo de Guzman said it's (sic) fine, sir.
Q: And then when Wilfredo de Guzman respondent (sic) "it is fine" . . .
what happened next after that?
A: Then the person told him, I heard news that you are also involved in a
case, sir.
xxx xxx xxx
Q: And what was the response of Wilfredo de Guzman?
A: He answered, I do not know what to do, sir.
xxx xxx xxx
COURT:
Q: After accused told, I do not know what to do, what happened next?
A: The person told him, you can't do otherwise but to tell the truth, sir.
xxx xxx xxx
PROS. DUMLAO:
Q: And what was the response of Wilfredo de Guzman?
A: He was silent, sir.
The alleged co-passenger of Lopez was not presented as a witness by the
prosecution. By itself, the conversation is too loose to tie up accused-
appellant to the killing of Capurno. Reference was made to a case where
accused-appellant allegedly got involved. It is unclear whether it is a court
case and whether it is civil or criminal in nature. The nature of his
involvement was undefined. The tenor of the conversation does not
establish a fact from which it can be rationally deduced that accused-
appellant murdered Capurno.
The prosecution tried to establish the motive of accused-appellant in
killing Capurno but in vain. Allegedly, accused-appellant had been
grabbing the tricycle passenger of Capurno. If this were so, it should be
Capurno who should entertain a grudge against accused-appellant.
Christopher Capurno's logic is topsy-turvy and nobody corroborated the
alleged enmity between the accused-appellant and Diosdado Capurno.
The records show that Christopher Capurno named other suspects who
allegedly had an axe to grind against the victim. At least two (2) of them,
Ico and De Vera, were positively identified by Lopez as having chased the
victim that fateful night. And yet, they were not immediately included in
the murder charge. 22
Likewise we cannot infer the guilt of the accused-appellant from the
uncorroborated testimony of Christopher that accused-appellant has a .38
caliber gun which he brandished to the victim on one occasion. From this
fact, however, we cannot jump to the conclusion that the alleged .38
caliber gun of accused-appellant is the murder weapon or that it was
accused-appellant who fired it to kill Capurno. The evidence does not show
the specific type of gun used in the killing of Capurno. Nor the bullets. All
that the NBI Medico-Legal Officer, Dr. Bandonill, stated was that the
gunshot wound of the victim could have been caused by a .32 or a .38
caliber bullet. 23
Finally, we come to the result of the paraffin test of accused-appellant
which revealed the presence of nitrates on his left hand.
In a recent case, 24 we reiterated the rule that paraffin test is in conclusive.
We held: "Scientific experts concur in the view that the paraffin test has '. .
. proved extremely unreliable in use.' The only thing that it can definitely
establish is the presence or absence of nitrates or nitrites on the hand. It
cannot be established from this test alone that the source of the nitrates
or nitrites was the discharge of firearm. The person may have handled one
or more of a number of substances which give the same positive reaction
for nitrates or nitrites, such as explosives, fireworks, fertilizers,
pharmaceuticals, and leguminous plants such as peas, beans, and alfalta.
A person who uses tobacco may also have nitrate or nitrite deposits on his
hands since these substances are present in the products of combustion of
tobacco." The presence of nitrates should be taken only as an indication of
a possibility or even of a probability but not of infallibility that a person has
fired a gun, since nitrates are also admittedly found in substances other
than gunpowder. 25 In the case at bar, we note, too, that accused-
appellant's left hand alone is positive of nitrates. His right hand has no
trace of nitrate. Did he use his left hand in shooting the victim? Is he left
handed? The evidence of the prosecution does not provide the answer.
Accused-appellant's defense of alibi may be weak as all defenses rooted
on alibi are weak. However, the prosecution evidence is weaker. It failed to
pass the test of moral certainty. It cannot convict.
IN VIEW WHEREOF, the impugned decision of the Regional Trial Court of
Dagupan City (Branch 43), in Criminal Case No. 12248, is REVERSED and
SET ASIDE, and accused-appellant WILFREDO DE GUZMAN is hereby
ACQUITTED of the crime charged due to reasonable doubt. His immediate
release from confinement is hereby ordered, unless there is any other
lawful cause for his continued detention. Costs de oficio.
SO ORDERED.
The Lawphil Project - Arellano Law Foundation

SYLLABI/SYPNOSIS
FIRST DIVISION
[G.R. Nos. 116196-97. June 23, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ADOVISO,
defendant-appellant.
DECISION
KAPUNAN, J.:
Pablo Adoviso appeals from the Joint Judgment of the Regional Trial Court
of Camarines Sur declaring him guilty beyond reasonable doubt for two
counts of Murder.
Appellant, allegedly a member of the Citizens Armed Forces Geographical
Unit (CAFGU), was originally charged with four unidentified persons who
have, however, remained at large. The information charging appellant
with the Murder of Rufino Agunos under Criminal Case No. P-2079 alleges:
That on or about the 18th day of February 1990 at about 8:00 o’clock [sic]
in the evening at Sitio Tan-agan, Barangay Casugad, Municipality of Bula,
Province of Camarines Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, while armed with assorted
long firearms, conspiring, confederating and mutually helping one another,
with intent to kill and with treachery and evident premeditation, did then
and there willfully, unlawfully and feloniously shoot one Rufino Agunos
several times with said firearms hitting the latter on the different parts of
his body which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said Rufino Agunos.
That the crime complained of against the accused is not service
connected.
ACTS CONTRARY TO LAW.
Except for the name of the victim, the information in Criminal Case No. P-
2080 with respect to the killing of Emeterio Vasquez, contains the same
allegations.
Appellant pleaded not guilty to both charges. At the joint trial of Criminal
Case Nos. P-2079 and P-2080, the prosecution presented their version of
the events that transpired on the evening of February18, 1990, as follows:
The spouses Emeterio and Anastacia Vasquez had two adjacent houses in
Sitio Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the
houses was actually a camalig where they stored harvested rice. The
spouses preferred to live there because it was cooler. The living area of
the camalig had walls of bamboo called salsag. This area was elevated
from the ground. Three steps led down to an awning (suyab) walled with
bamboo slats. These slats were placed horizontally approximately four to
six inches apart. A portion of the awning was used as a kitchen but
another portion had a papag where the Vasquez’ grandson, Rufino Agunos,
son of their daughter Virginia, would sleep whenever he tended the
irrigation pump. The spouses’ son Bonifacio occupied the other house
eight (8) meters from the camalig with his own son Elmer.
At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was
preparing coffee as his wife was about to retire for the night. Their
grandson Rufino had already gone to sleep in the papag. Anastacia had
just finished spreading the sleeping mat when she heard three or four
gunshots. Emeterio then uttered that he had been shot. Seeing Emeterio,
Anastacia exclaimed, “Why should you not be hit when in fact there are
guns in front of you.” Anastacia saw the “protruding edge of the gun” on
the wall near the stairs where Emeterio went down. A lamp near the stairs
where Emeterio drank coffee illuminated the camalig but Anastacia failed
to recognize the persons who fired their guns at her husband.
The Vasquez’ son Bonifacio was in the bigger house when he heard the
gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding
the engine of the irrigation pump. Bonifacio was still talking when he
noticed that Rufino had fallen asleep, the latter’s back against the bamboo
wall. Bonifacio left Rufino snoring in the papag and went to the other
house. Only a minute had passed after he had gone up when Bonifacio
heard the gunshots. He and his 16-year-old son Elmer immediately went
down the front yard to investigate.
Bonifacio hid himself in the dark portion of the yard, behind a coconut
tree. From a distance of eight (8) meters, Bonifacio saw Rufino, who was
inside the camalig, being shot by several persons from the outside.
Looking through the bamboo slats of the camalig wall, Bonifacio
recognized one of the assailants, with a large built and long hair, as
appellant Pablo Adoviso because of the gas lamp that was lighted inside
the camalig. Of Rufino’s assailants, only appellant was not wearing a
mask. Appellant was holding a long firearm wrapped inside a sack with its
muzzle protruding and directed where Rufino was sleeping. Appellant then
fired hitting Rufino. At that moment, Bonifacio heard his father Emeterio
shout “Pino,” (referring to his grandson Rufino) and saw his father go down
the stairs carrying a gas lamp. Appellant fired again, hitting Emeterio at
the stomach.
For his part, Elmer, who rushed towards the camalig with his father
Bonifacio, saw five (5) persons aiming their firearms at the camalig.
Except for appellant, each of these persons had a cover over their faces.
Three (3) of them were positioned in a ditch near the camalig while two (2)
others were near its door. Elmer saw these five (5) persons shoot his
cousin Rufino who was lying down on the papag. Although his back was
hit, Rufino was able to crawl under the papag. Elmer’s grandfather was
also hit on the stomach but he managed to go up the camalig. When
appellant and his companion by the camalig door saw Elmer, they fired at
him then, with the three others at the ditch, escaped to the banana
plantation. Elmer, on the other hand, fled towards the coconut plantation.
Upon returning to the camalig, Elmer saw his father carrying his
grandfather Emeterio. He also found Rufino at the foot of a coconut tree
near the river, lying on his side with his body curled. Rufino told Elmer
that he had been hit and, when Elmer failed to locate his wound, Rufino
took Elmer’s hand and put it on his back. Elmer then moved Rufino
“sidewise.” Upon returning to the camalig, Elmer carried his grandfather
and bandaged his stomach with diapers.
In the meantime, Bonifacio went to the municipal building of Bula to fetch
the police. Inspector Antonio Lopez and Senior Police Officer 1 Claro
Ballevar returned to the scene of the crime with him. The police brought
Emeterio and Rufino to the municipal hall of Bula and then to the Bicol
Regional Hospital. Both Emeterio and Rufino died early the next morning.
The certification dated March 7, 1990 and signed by Dr. Janice Nanette
Estrada, resident physician of the Bicol Regional Hospital in Naga City,
states that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at
the inguinal area, the sacral area, the thigh and the abdomen. The
wounds at the inguinal area and the thigh bore contusion collars. The
same physician certified that Emeterio Vasquez, 88 years of age, sustained
seven (7) gunshot wounds at the paraumbilical area, lumbar area,
hypogastrium, anterior aspect of the right forearm, anteromedial aspect of
the right forearm, anteromedial aspect left arm and anterolateral aspect of
the left arm. Four (4) of these gunshot wounds had contusion collars – at
the paraumbilical area, the hypogastrium, the right forearm and the left
arm.
Appellant Adoviso interposed alibi and denial as his defense.
Appellant claimed that he was a member of the CAFGU whose
headquarters was located in Barangay Palsong, Bula, Camarines Sur. At
around 7:00 in the evening of February 18, 1990, he was in Sitio Burabod,
Palsong, about a kilometer away from the CAFGU headquarters. He,
together with Francisco Bislombre, Benjamin Alina, Jr. and PFC Antero
Esteron, had some drinks in the store of Honoria Tragante until around
11:00 p.m.
Honoria Tragante and Francisco Bislombre corroborated appellant’s alibi.
Antero Esteron likewise testified that from 7:00 until past 11:00 that night
of February 18, 1990, he and appellant had a drinking spree at the
Tragante store. He distinctly remembered that date because it was the
fiesta of Balatan.
To support his denial, appellant presented Lt. Antonio Lopez, the deputy
chief of police and SPO2 Claro Ballebar of the PNP Bula Police Station.
Lopez identified a police certification prepared by Pfc. Ramon N. Canabe to
the effect that the shooting incident was perpetrated “by unidentified
armed men.” Lopez said that he (Lopez) was one of those who brought the
victims to the hospital who were then still conscious. The victims told him
that they did not know who shot them or why they were shot.
SPO2 Claro Ballebar, however testified that in the follow-up investigation
he conducted several days after the incident, Bonifacio Vasquez revealed
to him that he (Bonifacio) “vividly saw the incident and recognized”
appellant as one of the perpetrators of the crime and that the killings had
some something to do with land dispute between Bonifacio’s parents and
the Galicia family.
The defense also offered in evidence the testimony of Ernesto A. Lucena,
Polygraph Examiner II of the National Bureau of Investigation (NBI) in
Manila, who conducted a polygraph test on appellant. In Polygraph Report
No. 900175, Lucena opined that appellant’s “polygrams revealed that
there were no specific reactions indicative of deception to pertinent
questions relevant” to the investigation of the crimes.
In rebuttal, Bonifacio Vasquez revealed that when he reported the incident
to the police, he did not identify appellant as one of the culprits because
he was afraid of appellant who was a member of the CAFGU.
Nevertheless, Bonifacio did mention to the police that he recognized
appellant as one of the perpetrators of the crime although he told them
that he did not recognize appellant’s four (4) companions. He did not
mention to Lopez and Canabe appellant’s identity because he was
“confused” about what had happened in their house.
On March 25, 1994, the trial court rendered a Joint Judgment finding
appellant guilty beyond reasonable doubt for two (2) counts of murder and
disposing of Criminal Case Nos. P-2079 and P-2080 as follows:
WHEREFORE, in view of all the foregoing, joint judgment is hereby
rendered:
In Criminal Case No. P-2079, finding the accused PABLO ADOVISO guilty
beyond reasonable doubt of the crime of MURDER and imposing upon him
the penalty of RECLUSION PERPETUA and to pay the legal heirs of Rufino
Agunos, consisting of the widow, Evelyn T. Agunos and their four (4)
children the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine
Currency;
In Criminal Case No. P-2080, likewise finding said accused PABLO ADOVISO
guilty beyond reasonable doubt of the crime of MURDER and imposing
upon him another penalty of RECLUSION PERPETUA and to pay the legal
heirs of the late EMETERIO VASQUEZ, consisting of Anastacia Vasquez and
Bonifacio Vasquez, another sum of FIFTY THOUSAND PESOS (P50,000.00)
Philippine Currency with all the accessory penalties provided therefore in
both cases and to pay the costs in both instances.
SO ORDERED.
Appellant hinges his bid for exoneration on whether he was properly
identified by the two (2) eyewitnesses as one of the killers of the victims.
He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an
“incredible” story because it is “highly improbable” that they could have
“distinctly and positively recognized accused-appellant as one of the
perpetrators of the crimes." According to appellant, Bonifacio, who was in
the dark portion of the yard hiding behind a coconut tree, could not have
identified appellant by the light emanating from gas lamp inside the
camalig where Emeterio Vasquez and Rufino Agunos were staying at the
time of the incident. Neither could Elmer Vasquez, who declared that he
saw his grandfather shot by appellant, could have identified appellant
because of the poor lighting coming from the gas lamp being carried by
his grandfather. Appellant claims that the gas lamp carried by Elmer's
grandfather was “a small can about two (2) inches tall and the wick is
smaller than a cigarette” and the lamp inside the camalig “was placed
inside a bigger can so that the direction of the light emanating therefrom
was upwards and not sidewise.”
Visibility is indeed a vital factor in the determination of whether or not an
eyewitness could have identified the perpetrator of a crime. However, it is
settled that when conditions of visibility are favorable, and the witnesses
do not appear to be biased, their assertion as to the identity of the
malefactor should normally be accepted. Illumination produced by
kerosene lamp or a flashlight is sufficient to allow identification of persons.
Wicklamps, flashlights, even moonlight or starlight may, in proper
situations be considered sufficient illumination, making the attack on the
credibility of witnesses solely on that ground unmeritorious.
In this case, not one (1) but two (2) gas lamps illuminated the place – the
one placed inside the camalig and that held by Emeterio as he descended
from the stairs after the first volley of gunfire. Appellant’s contention
therefore that one particular gas lamp could not have lighted the place
because it was placed inside a can is puerile. Besides, Elmer was not
describing either of the gas lamps during the incident. The defense
counsel at the trial and appellant’s counsel misunderstood the testimonies
of Elmer and his grandmother on that matter. Thus, Elmer testified:
ATTY. CORTES:
Q Is it not that the lamp you said placed along the door, which is already
marked as lamp, is that not this lamp was placed inside a kerosene can as
testified to by your grandmother so that the cat could not cause it to fall?
A It was placed just on the floor not inside the can.” (Underlining
supplied.)
For her part, Anastacia testified as follows:
ATTY. CORTES:
xxx.
Q Because you were already about to retire, the doors and windows
were already closed, is that correct?
A Yes, sir.
Q That you also shut down or closed the light, is that correct?
A No, sir, we even placed the kerosene lamp inside a can.
Q You said, you placed the lamp inside a can so that the light is going
up, is that correct?
A Yes, sir.
Q So, the light was not illuminating sidewise because it was inside a
can?
A When we left, I got the kerosene lamp and brought it with me.
ATTY. CORTES:
I think, the witness did not get the question right, Your Honor.
COURT:
Repeat the question.
ATTY. CORTES:
Q My question Madam Witness is, when you were about to retire?
A The lamp was placed on the floor where my husband was drinking
coffee.
COURT:
Q Who are the persons you are referring to as having left when you
placed the light inside the can?
A My son, Bonifacio, and the policemen, Your Honor, when the(y)
brought Emeterio and Rufino to the hospital. (underlining supplied).
Clearly then, the lamp inside the camalig was placed on the floor and a
can was placed over it only after the incident when Anastacia left with her
son and the police to bring the victims to the hospital.
The bamboo slats of the camalig could not have effectively obstructed the
eyewitnesses' view of appellant, considering that the slats were built four
(4) meters apart. Besides, it is the natural reaction of relatives of victims
to strive to observe the faces and appearance of the assailants, if not
ascertain their identities, and the manner in which the crime is committed.
A relative will naturally be interested in identifying the malefactor to
secure his conviction to obtain justice for the death of his relative(s). It
must remembered that appellant was not a complete stranger to the
eyewitnesses. Bonifacio had known him for ten (10) years while Elmer
had been acquainted with him for four (4) years. Elmer recalled that
appellant used to join the rabuz at the barracks. Familiarity with
appellant’s face and appearance minimized if not erased the possibility
that they could have been mistaken as to his identity.
Appellant’s allegation that it was “improbable” for him to have committed
the crimes without a mask, unlike the other participants, deserves scant
consideration. It is not contrary to human experience for a person to
commit a crime before the very eyes of people who are familiar to them.
Indeed, some may even take pride in their identification as the perpetrator
of a criminal act.
Appellant also considers as a “positive sign,” Bonifacio’s failure to
immediately identify him as the perpetrator of the crime to the police. The
delay in reporting his participation to the police was however sufficiently
explained by Bonifacio. Bonifacio was afraid of appellant since the latter
was a member of the CAFGU and, as such, was provided with a gun. He
was also hesitant in identifying appellant immediately lest he got wind of
his impending arrest and posthaste escaped the clutches of the law. The
failure of a witness to reveal at once the identity of the accused as one of
the perpetrators of the crime does not affect, much less, impair his
credibility as a witness. The general or common rule is that witnesses
react to a crime in different ways. There is no standard form of human
behavioral response to a strange, startling and frightful event, and there is
no standard rule by which witnesses to a crime must react.
There is no merit in appellant’s contention that Bonifacio had a motive in
implicating him. According to appellant, Bonifacio suspected that he was
hired by the Galicia family to kill Bonifacio's father who had earlier won in
a land dispute with the Galicias. It is irrelevant here to talk of motive on
the part of Bonifacio inasmuch as to credible witnesses had positively
identified appellant as one of the participants in the killing of Emeterio
Vasquez and Rufino Agunos.
Appellant’s alibi thus crumbles in the face of his positive identification as
one of the perpetrators of the crimes. For an alibi to prosper, moreover,
there must be proof that the defendant was not only somewhere else
when the crime was committed but that he could not be physically present
at the place of the crime or its immediate vicinity at the time of its
commission.26 Appellant did not prove the physical impossibility of his
being in Sitio Tan-agan which is not exactly remote from Sitio Palsong
where he claimed to be when the incident happened. Both places are
within the Municipality of Bula. Appellant admitted that the distance
between the two sitios could be negotiated in three hours even without
any means of transportation. On the other hand, his alleged companion in WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED.
Sitio Palsong, Antero Esteron, testified that the distance could be traveled SO ORDERED.
in thirty-five (35) minutes by “trimobile” or private vehicle.
Apart from the fact that appellant's alibi was inherently weak, he was not
even sure where he was and who were his companions at the time the
crimes were committed. We quote the observation of the trial court on
this point:
On the premise that the trial court rendered the judgment of conviction on
the basis of “mere conjectures and speculations,” appellant argues that
the negative result of the polygraph test should be given weight to tilt the
scales of justice in his favor.
A polygraph is an electromechanical instrument that simultaneously
measures and records certain physiological changes in the human body
that are believed to be involuntarily caused by an examinee’s conscious
attempt to deceive the questioner. The theory behind a polygraph or lie
detector test is that a person who lies deliberately will have a rising blood
pressure and a subconscious block in breathing, which will be recorded on
the graph. However, American courts almost uniformly reject the results of
polygraph tests when offered in evidence for the purpose of establishing
the guilt or innocence of one accused of a crime, whether the accused or
the prosecution seeks its introduction, for the reason that polygraph has
not as yet attained scientific acceptance as a reliable and accurate means
of ascertaining truth or deception. The rule is no different in this
jurisdiction. Thus, in People v. Daniel, stating that much faith and credit
should not be vested upon a lie detector test as it is not conclusive.
Appellant, in this case, has not advanced any reason why this rule should
not apply to him.
Appellant was therefore correctly adjudged guilty of two counts of Murder.
Treachery qualified the killings to murder. There is treachery when the
offender commits any of the crimes against the person, employing means,
methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. In other words, there is
treachery when the attack on an unarmed victim who has not given the
slightest provocation is sudden, unexpected and without warning. The
victims in this case were totally unaware of an impending assault – Rufino
was sleeping and Emeterio was going down the stairs when they were
shot.

THIRD DIVISION
[G.R. No. 118231. July 5, 1996]
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF
APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS,
respondents.
DECISION
DAVIDE, JR., J.:
Throughout history, patients have consigned their fates and lives to the
skill of their doctors. For a breach of this trust, men have been quick to
demand retribution. Some 4,000 years ago, the Code of Hammurabi then
already provided: "If a physician make a deep incision upon a man with his
bronze lancet and cause the man's death, or operate on the eye socket of
a man with his bronze lancet and destroy the man's eyes, they shall cut off
his hand." Subsequently, Hippocrates wrote what was to become part of
the healer's oath: "I will follow that method of treatment which according
to my ability and judgment, I consider for the benefit of my patients, and
abstain from whatever is deleterious and mischievous . . . . While I
continue to keep this oath unviolated may it be granted me to enjoy life
and practice the art, respected by all men at all times but should I trespass
and violate this oath, may the reverse be my lot." At present, the primary
objective of the medical profession is the preservation of life and
maintenance of the health of the people.
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it and this Court, as
this case would show, let the act go uncondemned.
The petitioners appeal from the decision of the Court of Appeals of 11 May
1994 in CA-G.R. CV No. 30851, which reversed the decision of 21
December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial
Hospital, Dumaguete City from January 9, 1978 to September 1989.
Between 1987 and September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for
prenatal care as the latter's private patient sometime before September
21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of
Dr. Doris Teresita Sy who was also a Resident Physician at the same
Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses
performed a simple cesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered
her first child, Rachel Acogido, at about 11:45 that morning. Thereafter,
Plaintiff remained confined at the Hospital until September 27, 1988
during which period of confinement she was regularly visited by Dr.
Batiquin. On September 28, 1988, Mrs. Villegas checked out of the
Hospital . . . and on the same day she paid Dr. Batiquin, thru the latter's
secretary, the amount of P1,500.00 as "professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal
pains and complained of being feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which she had been taking up to
December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr.
Batiquin on October 31, 1988 . . . certifying to her physical fitness to return
to her work on November 7, 1988. So, on the second week of November,
1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon,
Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs.
Villegas no end and despite the medications administered by Dr. Batiquin.
When the pains become unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City
on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs.
Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs.
Villegas to be feverish, pale and was breathing fast. Upon examination
she felt an abdominal mass one finger below the umbilicus which she
suspected to be either a tumor of the uterus or an ovarian cyst, either of
which could be cancerous. She had an x-ray taken of Mrs. Villegas' chest,
abdomen and kidney. She also took blood tests of Plaintiff. A blood count
showed that Mrs. Villegas had [an] infection inside her abdominal cavity.
The result of all those examinations impelled Dr. Kho to suggest that Mrs.
Villegas submit to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-
yellow discharge inside, an ovarian cyst on each of the left and right
ovaries which gave out pus, dirt and pus behind the uterus, and a piece of
rubber materials on the right side of the uterus embedded on [sic] the
ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material
which Dr. Kho described as a "foreign body" looked like a piece of a
"rubber glove" . . . and which is [sic] also "rubber-drain like” . . . . It could
have been a torn section of a surgeon's gloves or could have come from
other sources. And this foreign body was the cause of the infection of the
ovaries and consequently of all the discomfort suffered by Mrs. Villegas
after her delivery on September 21, 1988.
The piece of rubber allegedly found near private respondent Flotilde
Villegas' uterus was not presented in court, and although Dr. Ma. Salud
Kho testified that she sent it to a pathologist in Cebu City for examination,
it was not mentioned in the pathologist's Surgical Pathology Report.
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of
rubber are a Medical Certificate, a Progress Record, an Anesthesia Record,
a Nurse's Record, and a Physician's Discharge Summary. The trial court,
however, regarded these documentary evidence as mere hearsay, "there
being no showing that the person or persons who prepared them are
deceased or unable to testify on the facts therein stated . . . . Except for
the Medical Certificate (Exhibit "F"), all the above documents were
allegedly prepared by persons other than Dr. Kho, and she merely affixed
her signature on some of them to express her agreement thereto . . . ."
The trial court also refused to give weight to Dr. Kho's testimony regarding
the subject piece of rubber as Dr. Kho "may not have had first-hand
knowledge" thereof, as could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign
body that goes with the tissues but unluckily I don't know where the
rubber was.
The trial court deemed vital Dr. Victoria Batiquin's testimony that when
she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered
that there was rubber indeed but that she threw it away." This statement,
the trial court noted, was never denied nor disputed by Dr. Kho, leading it
to conclude:
There are now two different versions on the whereabouts of that offending
"rubber" — (1) that it was sent to the Pathologist in Cebu as testified to in
Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to
Defendant. The failure of the Plaintiffs to reconcile these two different
versions serve only to weaken their claim against Defendant Batiquin.
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and,
even without admitting the private respondents' documentary evidence,
deemed Dr. Kho's positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas' uterus. Thus, the
Court of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by
preponderance of evidence. The trial court itself had narrated what
happened to appellant Flotilde after the cesarean operation made by
appellee doctor . . . . After the second operation, appellant Flotilde
became well and healthy. Appellant Flotilde's troubles were caused by the
infection due to the "rubber" that was left inside her abdomen. Both
appellants testified that after the operation made by appellee doctor, they
did not go to any other doctor until they finally decided to see another
doctor in January, 1989 when she was not getting any better under the
care of appellee Dr. Batiquin . . . . Appellee Dr. Batiquin admitted on the
witness stand that she alone decided when to close the operating area;
that she examined the portion she operated on before closing the same . .
. . Had she exercised due diligence, appellee Dr. Batiquin would have
found the rubber and removed it before closing the operating area.
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit
of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together
with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the
second operation that saved her life.
For the miseries appellants endured for more than three (3) months, due
to the negligence of appellee Dr. Batiquin, they are entitled to moral
damages in the amount of P100,000.00; exemplary damages in the
amount of P20,000.00 and attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her
uterus and ovaries were removed by Dr. Kho is not taken into
consideration as it is not shown that the removal of said organs were the
direct result of the rubber left by appellee Dr. Batiquin near the uterus.
What is established is that the rubber left by appellee cause infection,
placed the life of appellant Flotilde in jeopardy and caused appellants fear,
worry and anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the complaint for
damages is REVERSED and SET ASIDE. Another judgment is hereby
entered ordering defendants-appellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual damages; P100,000.00 as and for
moral damages; P20,000.00 as and for exemplary damages; and
P25,000.00 as and for attorney's fees plus the cost of litigation.
SO ORDERED.
From the above judgment, the petitioners appealed to this Court claiming
that the appellate court; (1) committed grave abuse of discretion by
resorting to findings of fact not supported by the evidence on record, and
(2) exceeded its discretion, amounting to lack or excess of jurisdiction,
when it gave credence to testimonies punctured with contradictions and
falsities.
The private respondents commented that the petition raised only
questions of fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for
review on certiorari, there are exceptions, among which are when the
factual findings of the trial court and the appellate court conflict, when the
appealed decision is clearly contradicted by the evidence on record, or
when the appellate court misapprehended the facts.
After deciphering the cryptic petition, we find that the focal point of the
instant appeal is the appreciation of Dr. Kho's testimony. The petitioners
contend that the Court of Appeals misappreciated the following portion of
Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case
this would turn out to be a medico-legal case, I have heard somebody that
[sic] says [sic] there is [sic] a foreign body that goes with the tissues but
unluckily I don't know where the rubber was. It was not in the Lab, it was
not in Cebu. (Italics supplied)
The petitioners prefer the trial court's interpretation of the above
testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based
on hearsay. The Court of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial court. According
to the Court of Appeals, the trial court should have likewise considered the
other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside
the abdomen, there was an ovarian cyst on the left and side and there was
also an ovarian cyst on the right which, on opening up or freeing it up from
the uterus, turned out to be pus. Both ovaries turned out . . . to have pus.
And then, cleaning up the uterus, at the back of the uterus it was very
dirty, it was full of pus. And there was a [piece of] rubber, we found a
[piece of] rubber on the right side.
We agree with the Court of Appeals. The phrase relied upon by the trial
court does not negate the fact that Dr. Kho saw a piece of rubber in private
respondent Villegas' abdomen, and that she sent it to a laboratory and
then to Cebu City for examination by a pathologist. Not even the
Pathologist's Report, although devoid of any mention of a piece of rubber,
could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other than first hand knowledge for,
as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.
The petitioners emphasize that the private respondents never reconciled
Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that
when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter
said that there was a piece of rubber but that she threw it away. Although
hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is
admissible but it carries no probative value. Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho
found a piece of rubber near private respondent Villegas' uterus. And
even if we were to doubt Dr. Kho as to what she did to the piece of rubber,
i.e., whether she threw it away or sent it to Cebu City, we are not justified
in distrusting her as to her recovery of a piece of rubber from private
respondent Villegas' abdomen. On this score, it is perfectly reasonable to
believe the testimony of a witness with respect to some facts and
disbelieve his testimony with respect to other facts. And it has been aptly
said that even when a witness is found to have deliberately falsified in
some material particulars, it is not required that the whole of his
uncorroborated testimony be rejected, but such portions thereof deemed
worthy of belief may be credited.
It is here worth nothing that the trial court paid heed to the following
portions of Dr. Batiquin's testimony: that no rubber drain was used in the
operation, and that there was neither any tear on Dr. Batiquin's gloves
after the operation nor blood smears on her hands upon removing her
gloves. Moreover, the trial court pointed out that the absence of a rubber
drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the
operation on private respondent Villegas. But the trial court failed to
recognize that the assertions of Drs. Batiquin and Sy were denials or
negative testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony. Of course, as the petitioners advocate,
such positive testimony must come from a credible source, which leads us
to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr.
Kho's testimony, a reading of the said testimony reveals no such infirmity
and establishes Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore, no motive to state
any untruth was ever imputed against Dr. Kho, leaving her trustworthiness
unimpaired. The trial court's following declaration shows that while it was
critical of the lack of care with which Dr. Kho handled the piece of rubber,
it was not prepared to doubt Dr. Kho's credibility, thus only supporting out
appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about
her findings, but it can also be said that she did not take the most
appropriate precaution to preserve that "piece of rubber" as an eloquent
evidence of what she would reveal should there be a "legal problem"
which she claim[s] to have anticipated.
Considering that we have assessed Dr. Kho to be a credible witness, her
positive testimony [that a piece of rubber was indeed found in private
respondent Villegas' abdomen] prevails over the negative testimony in
favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had
occasion to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which
causes injury is shown to be under the management of the defendant, and
the accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the
accident arose from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or
inference that defendant was negligent, which arises upon proof that [the]
instrumentality causing injury was in defendant's exclusive control, and
that the accident was one which ordinary does not happen in absence of
negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of
[the] alleged wrongdoer may be inferred from [the] mere fact that [the]
accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence
of negligence it would not have occurred and that thing which caused
injury is shown to have been under [the] management and control of [the]
alleged wrongdoer . . . . Under [this] doctrine . . . the happening of an
injury permits an inference of negligence where plaintiff produces
substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of
defendant, and that the occurrence [sic] was such that in the ordinary
course of things would not happen if reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the
law of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific
proof of negligence. The doctrine is not a rule of substantive law, but
merely a mode of proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a particular case, is not
intended to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the duty of due care. The
doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.
In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the cesarean section were under
the exclusive control of Dr. Batiquin. In this light, the private respondents
were bereft of direct evidence as to the actual culprit or the exact cause of
the foreign object finding its way into private respondent Villegas' body,
which, needless to say, does not occur unless through the intervention of
negligence. Second, since aside from the cesarean section, private
respondent Villegas underwent no other operation which could have
caused the offending piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of the cesarean
section performed by Dr. Batiquin. The petitioners, in this regard, failed to
overcome the presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently
leaving behind a piece of rubber in private respondent Villegas' abdomen
and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people, and State's compelling
interest to enact measures to protect the public from "the potentially
deadly effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma." Indeed, a
physician is bound to serve the interest of his patients "with the greatest
of solicitude, giving them always his best talent and skill." Through her
tortious conduct, the petitioner endangered the life of Flotilde Villegas, in
violation of her profession's rigid ethical code and in contravention of the
legal standards set forth for professionals, in the general, and members of
the medical profession, in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of
Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.

SECOND DIVISION
[G.R. No. 120547. January 29, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDISON PLAZO,
accused-appellant.
DECISION
QUISUMBING, J.:
On appeal is the decision dated January 16, 1995 of the Regional Trial
Court of San Jose, Camarines Sur, Branch 30, convicting appellant of the
crime of murder, sentencing him to suffer the penalty of reclusion
perpetua, and to pay the heirs of the victim P50,000.00 as indemnity,
P15,712.00 as actual damages, P10,000.00 as moral damages, and to pay
the costs.
The facts, based on the records, are as follows:
On August 8, 1989, at around 4:00 in the afternoon, Leonor Fabula went
out of her house in May-anao, Tigaon, Camarines Sur to buy sugar at a
nearby store. When she reached the store, she saw appellant boxing her
son Romeo Fabula and banging his head on the post of the store, while
asking him why he told the police about his brother and the location of
appellant’s house. When Leonor sought to intervene, appellant got angry
at her. She became afraid and asked for help but nobody went near them.
Romeo freed himself from the hold of appellant and ran away. Appellant
chased Romeo with a small bolo known locally as “gatab.” Leonor shouted
at appellant to stop but the latter did not heed her pleas. Appellant
caught up with Romeo and stabbed him at the back causing Romeo to fall
on the ground. Appellant continued to stab Romeo in the upper and lower
chest area. Leonor continued shouting for help and eventually someone
came to help. However, when she saw her son no longer moving, she told
the people not to touch or move him because she was going to the
Poblacion of Tigaon to get a policeman.
When Patrolmen Virgilio Azucena and Jose Madera arrived at the scene of
the crime, they saw the fallen body of Romeo with a small bolo imbedded
on his chest and the detached handle of the bolo on the ground near his
body. The policemen brought the body to the Municipal Building where the
Municipal Health Officer, Dr. Constancio Tam, conducted an autopsy.
On June 10, 1991, appellant was charged with the crime of murder under
the following Information:
“That on or about the 8th day of August, 1989 at Barangay May-Anao,
Municipality of Tigaon, Province of Camarines Sur, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, armed
with a knife, with intent to kill, with treachery and evident premeditation,
did then and there wilfully, unlawfully and feloneously (sic) attack, assault
and stab one Romeo Fabula directing the blow on the vital parts of his
body which was the direct and immediate cause of his death, to the
damage and prejudice of his heirs in such amount as maybe awarded by
the Court.
Acts Contrary To Law.”
On arraignment appellant, assisted by counsel de oficio, pleaded not
guilty.
During trial, the prosecution presented the following witnesses: (1) Leonor
Fabula, the mother of the victim; (2) SPO1 Jose Madera and SPO4 Virgilio
Azucena, both members of the Philippine National Police (PNP) of Tigaon,
Camarines Sur, and (4) Dr. Constancio A. Tam, Municipal Health Officer of
Tigaon, Camarines Sur.
Leonor Fabula testified that she witnessed the stabbing incident and
identified appellant as the assailant of her son. She said that the police
were looking for appellant’s brother who had a pending case for robbery in
Manila. The police asked her son where the house of appellant’s brother
was. Her son, who knew nothing of the case, pointed out the house to the
police leading to the arrest of appellant’s brother. This angered appellant
who sought out and killed her son. She also testified on damages
sustained as a result of her son’s death.
SPO1 Jose Madera testified that he was present during the autopsy and
that Dr. Tam turned over to him the bolo which was imbedded in the body
of the victim. He identified the same bolo in court.
SPO4 Virgilio Azucena testified that upon the report of Leonor Fabula of the
stabbing incident, he and four others immediately went to the place of the
incident in May-anao, Tigaon. They found the body of the victim in the
ricefield some 50 meters away from the road. The bolo was embedded in
the victim’s chest and the handle lying beside him.
Dr. Constancio A. Tam testified that the victim sustained four stab wounds
in the left upper abdomen, right eliac part of the abdomen, upper part of
the left chest, and upper part of the left back. The weapon was still
embedded in the upper left abdomen when he examined the body. Dr. Tam
testified that this wound was fatal since it pierced the heart. He said that
the stab wounds could have been caused by a sharp-bladed, sharp-pointed
instrument, locally known as “gatab”.
The defense presented as its witnesses the appellant himself and his
cousin, Alfredo Siso. Appellant’s version is as follows:
In the afternoon of August 8, 1989, appellant was at a billiard hall in May-
anao, Tigaon, serving as a spotter in a game between Celso Plazo and
Alfredo Siso. The victim suddenly arrived drunk, placed a ball on top of the
table, and said that he wanted to put a bet against Alfredo Siso. Insulted,
Alfredo told appellant to pacify the victim. However, the victim became
angry and struck appellant with a billiard stick. Alfredo and Celso helped
pacify the victim who became even angrier, and then drew a bladed
weapon saying he would use it on appellant. Appellant ran away followed
by the victim. Appellant slipped and injured his foot and the victim caught
up with him. The two grappled with the small bolo and suddenly, the bolo
was already imbedded in the chest of the victim. Appellant fled and
eventually went to Manila because of the threats of relatives of the victim.
Appellant’s cousin, Alfredo, merely testified that after the two protagonists
ran away, he already went home.
After trial, the trial court rendered its decision finding appellant guilty of
the crime of murder, disposing thus –
“WHEREFORE, the accused Edison Plazo is hereby sentenced to suffer the
penalty of reclusion perpetua with the inherent accessories provided by
law, to indemnify the heirs of the late Romeo Fabula for the latter’s death
the sum of Fifty Thousand Pesos (P50,000.00); the sum of Fifteen
Thousand Seven Hundred Twelve Pesos (P15,712.00) as actual damages;
and the sum of Ten Thousand Pesos (P10,000.00) as moral damages, all of
Philippine Currency and for the said accused to pay the costs.
The accused Edison Plazo shall be entitled to full credit of his preventive
imprisonment if he agreed to abide with the rules imposed upon convicted
persons, otherwise, he shall only be entitled to four-fifth (4/5) credit
thereof.
SO ORDERED.”
Appellant assigns the sole error that -
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.
In his brief, appellant assails the credibility of the testimony of Leonor
Fabula, the victim’s mother, considering that (1) contrary to her testimony,
the medical findings did not indicate that the victim was boxed nor his
head banged on the store post; (2) her testimony that her son was
stabbed dead on a ditch did not jibe with the testimony of SPO4 Azucena
that the body of the victim was recovered from the ricefield; and (3) her
actions after seeing her son dead and getting a policeman instead of
comforting him was contrary to normal human conduct. Further, appellant
claims that his testimony that he acted in self-defense was corroborated
by the testimony of his cousin, Alfredo Siso. Lastly, appellant claims there
was no treachery because there was no proof as to how the attack began.
For the State, the Office of the Solicitor General (OSG) contends that
appellant failed to establish the elements of self-defense considering the
number and location of the wounds of the deceased. Further, the
testimony of defense witness Alfredo Siso should not be given credence
because he did not actually witness the stabbing incident. The OSG
asserts that treachery attended the killing because appellant unleashed
two separate attacks on the victim, the first consisted only of fist blows,
and the second consisted of the stabbing.
The issues for our consideration pertain to (1) the assessment of credibility
of witnesses, (2) the existence of valid self-defense, and (3) the sufficiency
of the evidence to convict appellant of the crime of murder.
Well-entrenched is the rule that findings of the trial court as to the
credibility of witnesses are accorded great weight, even finality, on appeal,
unless the trial court has failed to appreciate certain facts and
circumstances which, if taken into account, would materially affect the
result of the case. Having had the opportunity to personally observe the
witnessess’ demeanor and manner of testifying, the trial judge is in a
better position to pass judgment on their credibility. As observed by the
trial court, “Leonor Fabula testified in a straightforward, spontaneous and
frank manner.” A review of the records and transcript of stenographic
notes leads us to agree with that conclusion.
As to the alleged inconsistencies in Fabula’s testimony, the fact that the
medical findings did not indicate that the victim was boxed nor his head
banged does not negate the possibility of such acts. The defense failed to
question the medico-legal officer on the stand and it cannot now raise
such factual matter before this court. As to the location of the body of the
victim, while Leonor Fabula testified that her son was stabbed “just by the
ditch of the road of May-anao,” SPO4 Azucena testified that they found the
body “in the ricefield.” The records show, however, that on cross-
examination, SPO4 Azucena clarified that they found the body on the
“embankment of the rice-field (bas-og).” Hence, there is no inconsistency
between their testimonies on the matter.
The testimony of witnesses to a crime could not be expected to be error-
free throughout. Different persons have different impressions and
recollections of the same incident. Likewise, we find nothing extraordinary
or unusual about a mother seeking help from the authorities first before
rushing to help her son. As repeatedly stressed, there is no standard form
of human behavioral response when one is confronted with a strange,
startling, or frightful experience. Witnessing a crime is an unusual
experience that elicits different reactions from the witnesses, and for
which no clear-cut standard form of behavior can be drawn.
Further, while it was only the mother of the victim who testified on the
events leading to the stabbing incident, we have held that the testimony
of a single eyewitness is sufficient to support conviction so long as it is
clear, straightforward, and found worthy of credence by the trial court. The
mere fact that she is the mother of the victim does not impair her
credibility. Blood relationship between a witness and victim does not, by
itself, impair the credibility of the witness. On the contrary, relationship
strengthens credibility, for it is unnatural for an aggrieved relative to
falsely accuse someone other than the actual culprit. The earnest desire to
seek justice for a dead kin is not served should the witness abandon his
conscience and prudence and blame one who is innocent of the crime.
More importantly, Leonor Fabula’s version of the stabbing incident, that
appellant repeatedly stabbed her son in the “upper and lower chest area,”
is duly supported by the findings of the medico-legal officer that the victim
sustained four stab wounds in the chest and abdomen area.
As to appellant’s claim of self-defense, there is no evidence to support
such assertion. Self-defense as a justifying circumstance must satisfy the
following requirements: (1) unlawful aggression on the part of the victim;
(2) reasonable necessity of the means employed to repel the aggression;
and (3) lack of sufficient provocation on the part of the accused. The
burden of proving by clear and convincing evidence that the killing was
justified is on the accused. In doing so, he must rely on the strength of his
own evidence and not on the weakness of that of the prosecution.
Appellant herein failed to prove any of the elements of self-defense. As
correctly pointed out by the trial court, the number of wounds on the body
of the victim negates self-defense. If indeed, the victim was stabbed while
the two protagonists were grappling with the small bolo, then why did the
victim sustain four stab wounds? The nature, location and number of
wounds inflicted on the victim negate the claim of self-defenseand,
instead, indicate a determined effort to kill the victim.
Further, the flight of the appellant after the incident betrays the existence
of his guilty conscience. According to his testimony, he went to Manila
because his relatives and residents of their barangay advised him to take
care of himself because the relatives of the victim were running after him.
Appellant himself admitted that he hid “for several years.” This conduct is
inconsistent with his protestations of self-defense.
While the information alleged the attendance of the qualifying
circumstances of treachery and evident premeditation, these were not
proven by the prosecution’s evidence. Circumstances which qualify
criminal responsibility must in no case rest upon mere presumptions, no
matter how reasonable or probable, but must be based on facts of
unquestioned existence. It is settled that circumstances which qualify
killing to murder must be proved as indubitably as the crime itself.
There was no treachery because there was no proof in this case as to how
the attack started. For treachery to be present, two conditions must be
shown: (1) the employment of means of execution that give the person
attacked no opportunity to defend or retaliate and (2) the deliberate or
conscious adoption of the means of execution. Treachery cannot be
presumed; it must be proven as fully and as convincingly as the crime
itself. The sole eyewitness testified that when she arrived at the scene,
appellant was already boxing her son. Hence, she could not have possibly
witnessed the inception of the attack. Any doubt as to the existence of
treachery must be resolved in favor of the accused. Where no particulars
are known regarding the manner in which the aggression was made or
how the act which resulted in the death of the victim began and
developed, it cannot be established from mere supposition that an
accused perpetrated the killing with treachery.
Likewise, the prosecution failed to prove the following requisites of evident
premeditation: (1) the time when the offender determined to commit the
crime; (2) an act manifestly indicating that the culprit clung to his
determination; and (3) sufficient lapse of time between the determination
and execution to allow him to reflect upon the consequences of his act.
Hence, in the absence of any circumstance which would qualify the crime
to murder, we find that appellant should be found liable only for the crime
of homicide.
Under Article 249 of the Revised Penal Code, the penalty for the crime of
homicide is reclusion temporal. There being no mitigating nor aggravating
circumstance, the penalty of reclusion temporal should be imposed in its
medium period. Applying the indeterminate sentence law, the minimum of
the indeterminate sentence should be taken from the penalty next lower in
degree, which is prision mayor.
The trial court correctly awarded the amount of P50,000.00 as indemnity.
However, the award of actual damages in the amount of P15,712.00 was
based solely on the bare assertions of the mother of the victim. The Court
can only grant such amount for expenses if they are supported by
receipts. In the absence thereof, no actual damages can be awarded.
However, in lieu of actual damages, temperate damages under Art. 2224
of the Civil Code may be recovered where it has been shown that the
victim’s family suffered some pecuniary loss but the amount thereof
cannot be proved with certainty. We find the award of P15,000.00 as
temperate damages reasonable. Moral damages cannot be awarded in
the absence of any evidence to support its award.
WHEREFORE, the decision of the Regional Trial Court of San Jose,
Camarines Sur, Branch 30, in Criminal Case No. T-1009, is hereby
MODIFIED. Appellant Edison Plazo is found guilty of the crime of homicide,
and sentenced to a minimum of eight (8) years, eight (8) months, and one
(1) day of prision mayor medium as minimum, to fifteen (15) years, six (6)
months, and twenty (20) days of reclusion temporal medium as maximum,
and to pay the heirs of the victim the amount of P50,000.00 as indemnity
and P15,000.00 as temperate damages, and the costs.
SO ORDERED.

EN BANC
[G. R. Nos. 140736-39. February 4, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS LILO, accused-
appellant.
DECISION
PER CURIAM:
For automatic review is the decision rendered by Branch 25 of the Regional
Trial Court (RTC) of Iloilo City finding accused-appellant Carlos Lilo guilty of
incestuous rape on four counts and sentencing him to suffer the penalty of
death on one count and reclusion perpetua on three.
By the account of private complainant, Carol Lilo, the only child of
accused-appellant, she was raped numerous times by him but could recall
only four occasions, those subject of the criminal complaint docketed as
Criminal Case No. 49823 and three separate informations docketed as
Criminal Case Nos. 49824, 49825 and 49826 filed on September 3, 1998 at
the RTC of Iloilo City, for acts allegedly committed in October 1995, May
24, 1998, July 24, 1998, and May 19, 1998, respectively, as follows:
CRIMINAL CASE NO. 49823
That in October 1995, in the Municipality of Calinog, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with a bolo, with deliberate intent, by means of
force and intimidation and with abuse of confidence and trust, did then
and there willfully, unlawfully and feloniously have carnal knowledge of the
undersigned complainant CAROL LILO, his daughter, who was then
seventeen (17) years old, against her will and/or consent.
CRIMINAL CASE NO. 49824
That on or about May 24, 1998, in the Municipality of Calinog, Province of
Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bladed weapon, with deliberate
intent, by means of force and intimidation and with abuse of confidence
and trust, did then and there willfully, unlawfully and feloniously have
carnal knowledge of his daughter CAROL LILO, against her will and/or
consent.
CRIMINAL CASE NO. 49825
That on or about July 24, 1998, in the Municipality of Calinog, Province of
Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bladed weapon, with deliberate
intent, by means of force and intimidation and with abuse of confidence
and trust, did then and there willfully, unlawfully and feloniously have
carnal knowledge of his daughter CAROL LILO, against her will and/or
consent.
CRIMINAL CASE NO. 49826
That on or about May 19, 1998, in the Municipality of Calinog, Province of
Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bladed weapon, with deliberate
intent, by means of force and intimidation and with abuse of confidence
and trust, did then and there willfully, unlawfully and feloniously have
carnal knowledge of his daughter CAROL LILO, against her will and/or
consent.
Recalling the rape which occurred on a day in October 1995 subject of
Criminal Case No. 49823, Carol declared as follows:
After accused-appellant left for his farm in Barangay Impalidan, Calinog,
Iloilo, a kilometer away from his house, she followed him, bringing him
food.
After accused-appellant had eaten at around 10:30 a.m., he summoned
her. As she obliged, he held her, pointed a bolo at her and told her not to
make any noise. She was thus prompted to ask him what he intended to
do, he being her father, to which he replied: “You are my daughter and I
was the one who caused you to be born. I was the one feeding you,
clothing you. Afterwards others will make use of you? I will do it first.”
Accused-appellant thereupon dragged her toward the sugarcane field
some thirty meters from the farm and upon reaching it, he hugged her
thighs and laid her on the ground. She resisted and fought back, but he
punched her, and she proved no match for him.
Accused-appellant then removed her panty, raised her shirt, felt her whole
body and kissed her lips and breasts. Thereafter, he undressed himself,
laid flat on her, and forced his penis into her vagina where it stayed for
one (1) minute, he “mov[ing] his buttocks up and down,” drawing her to
cry. When he was through, accused-appellant cautioned her not to tell
anybody what happened, otherwise he would kill her, her mother, and her
grandmother.
A certification from the Office of the Local Civil Registrar of Calinog, Iloilo
shows that Carol was only 17 years and 4 months old at the time of the
incident.
With respect to the May 19, 1998 incident subject of Criminal Case No.
49826, Carol related that while she was at home sleeping, accused-
appellant woke her up, pointed a bolo at her and threatened her not to
make any noise. While holding the bolo in one hand, accused-appellant
undressed her, touched her body, kissed her on the lips and breasts, and
“did to [her what] he did to [her] in the past.
The sexual act was repeated in the same manner, so Carol claimed, on
May 24, 1998 when at around midnight while she was at home, accused-
appellant did to her the, “same thing he had done to [her] before.
Finally, on the July 24, 1998 incident, Carol declared that as she lay
asleep at 10:30 p.m., after a long night at a school function, accused-
appellant woke her up, pointed a bolo at her and threatened her not to
make any noise. He then “undressed [her] and d[id] what he [had] done to
[her] again.”
When asked why she never reported the incidents to her mother, Carol
responded that her mother seldom went home on account of her work in
“town” and that she was under constant threat from accused-appellant not
to disclose the incidents to anyone.
In August 1998, following her attendance in a symposium on abuses
committed against children and women held at the Calinog Agricultural
and Industrial College where she was enrolled, Carol, then already 20,
revealed to her friend Joy Lyn Casalan about accused-appellant’s
molestations on her.
Accompanied by Joy, she, on August 12, 1998, reported to the local police
station the multiple rapes committed against her, and on the instruction of
the police, she on even date submitted herself to medical examination
which showed that she had 3 healed lacerations in the hymen located at 4,
6 and 8 o’clock positions.
Accused-appellant denied the accusations against him.
The trial court, however, discredited accused-appellant’s denial and found
him guilty of four counts of rape in the decision on review, the dispositive
portion of which reads:
WHEREFORE, premises considered, the court, finding the accused, Carlos
Lilo, guilty of four (4) counts of rape beyond reasonable doubt, imposes
upon him the following penalties:
In each of the cases docketed as Crim. Cases Nos. 49824, 49825 and
49826, the penalty of reclusion perpetua with the accessory penalties as
provided in Article 42 of the Revised Penal Code;
In Crim. Case No. 49823 the penalty of death with such accessory
penalties as provided in Article 40 of the Revised Penal Code; and
To pay private complainant P50,000.00 as moral damages as well as pay
the cost.
Before this Court, accused-appellant disputes the finding that he is guilty
beyond reasonable doubt, and assails the reliance by the trial court on the
testimony of Carol who was merely motivated, so he claims, by
resentment in filing the complaint due to the fact that he often maltreated
her.
Accused-appellant’s submission does not persuade. This Court finds his
claim to be a mere afterthought for, during the trial, when asked if he
knew of any motive why Carol filed the cases against him, he replied in the
negative. Further, this Court has consistently echoed its ruling that
parental punishment would not suffice to egg one to falsely charge one’s
father with rape.
Accused-appellant goes on to harp on Carol’s inability to recall the exact
date when the incident in October 1995 was allegedly committed. Failure
to recall the exact date of the crime, however, is not an indication of false
testimony, for even discrepancies regarding exact dates of rapes are
inconsequential and immaterial and cannot discredit the credibility of the
victim as a witness.
Accused-appellant goes further to posit that rape could not have been
committed in October 1995 in broad daylight, particularly in a farm where
there were other people who were supposed to be at work. Judicial notice,
however, is taken of the fact, and it can be considered of public
knowledge, that the scene of rape is not always or necessarily isolated or
secluded, as it can be committed even in places where people congregate,
in parks along the roadside, in school premises, in a house where there are A- Because I know him your honor.
other occupants, in the same room where other members of the family are Q- But you said you were asleep already?
also sleeping, and even in places which to many would appear unlikely and
high-risk venues for its commission. A- Yes, your honor.
Finally, accused-appellant focuses on Carol’s behavior after the alleged Q- Were you still sleeping when your father raped you?
rape incidents as running counter to human nature. He cites Carol’s A- He would wake me up.
casually leaving the place where she claims to have been molested in
October 1995 and continuing to work in the farm with him as if nothing Q- Were you already raped or your father was in the act of raping you
happened. The behavior or reaction of every person to a certain event when he awaken you?
cannot, however, be predicted with accuracy, and may be dealt with in A- Before, your honor.
any way by the victim whose testimony may be given full credence so long
Q- So, before he raped you he awaken you?
as her credibility is not tainted by any modicum of doubt.
The undoubted credibility of the witness in Carol and of her testimony A- Yes, your honor.
notwithstanding, this Court finds that the prosecution has proven only one xxx
(1) count of rape, that committed in October 1995. The following
Q- And what happened when you woke up?
testimony of Carol instructs so:
A- He was pointing his bolo at me and after he had awakened me he
Q- And for how long did your father have sexual intercourse with you?
would threaten me not to make any noice and all what he did to me he
A- For almost three (3) minutes. did it to me like in the past.
Q- And after that what happened? xxx
A- After putting my clothes again he was frightening me not to tell Q- What actually did your father do?
anybody.
A- Pointing a bolo at me, he would undress me, removed my
COURT: panty and then my blouse and touch my whole body, kiss my lips
Q- Was your father able to put his sex organ into yours? and then my breast, your honor.
xxx
A- Yes, your honor. (Emphasis supplied).
With respect to the alleged incident of May 19, 1998, the following tale of Q- On May 19, 1998, how long did your father consummate the act of
raping you?
Carol, quoted verbatim, does not establish the commission of rape.
PROS. GEDUSPAN A- About three (3) minutes your honor. (Emphasis supplied).
The bare allegation of Carol that she was raped in the same manner as in
Q- Now, you said your father sexually mollested you again after October
1995. When was that? previous incidents without giving any detail on how the act was
committed is inadequate to establish to a degree of moral certainty the
A- On May 19, 1998. guilt thereof of accused-appellant. It bears emphasis that every charge of
COURT: rape is a distinct and separate crime and each must be proved beyond
reasonable doubt.
xxx
With respect then to the incident of May 19, 1998, in the absence of any
Q- And what made you say that it was your father who raped you? evidence showing that, aside from accused-appellant’s undressing and
touching the delicate parts of Carol’s body, he had carnal knowledge with
her, the crime committed is merely acts of lasciviousness under Article
336 of the Revised Penal Code which reads:
ART. 336. Acts of lasciviousness - Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by
prision correccional.
As in the May 19, 1998 incident, Carol’s following testimony regarding the
July 24, 1998 incident, quoted verbatim, does not establish the
commission of rape:
Q- After May 19, 1998, were you raped again?
A- Yes, your honor.
As reflected in the above-quoted portion of Carol’s testimony, aside from
undressing private complainant, there is no showing that accused-
appellant had sexual intercourse with her. Nor is there any showing of lewd
designs for the acts to be considered as lascivious. The testimony,
however, shows that accused-appellant, by means of threats, successfully
undressed Carol against her will, facts that constitute the elements of
grave coercion as defined in Article 286 of the Revised Penal Code. The
elements of grave coercion were not, however, sufficiently alleged in the
information under Criminal Case No. 49825 and, in view of the right of an
accused to be informed of the nature and cause of the accusation against
him, accused-appellant may not be convicted of grave coercion.
Lastly, with respect to the rape allegedly committed on May 24, 1998
subject of Criminal Case No. 49824, Carol had this to say:

Q- What date was that? PROS. GEDUSPAN

A- July 1998. Q- So aside from May 19, 1998 you were also raped on May 24, 1998?

Q- What date in July 1998? A- Yes, your honor.

A- July 24, 1998, your honor. Q- When was that committed?

Q- Where did it happen? A- At home, your honor.

A- At home. Q- What time?

xxx A- In the midnight, your honor.

Q- So, you were there in your house when you were raped by your father Q- And what did he do to you?
on July 24, 1998? A- The same thing he had done to me before, your honor.
A- Yes, your honor. (Emphasis supplied)

xxx
Q- And what actually happened?
A- At about 10:30 while I was asleep I was awakened and when I woke up
he was pointing a knife at me and he told me do not make any
noise and something bad will happen to you. And he again
undresses me and do what he done to me again.
Q- And what happened after that?
A- After he had raped me I went back to sleep again. (Emphasis
supplied)
As earlier mentioned, every charge of rape is a distinct and separate crime
and each must be proved beyond reasonable doubt. Since the prosecution
has failed to prove that any crime was committed on May 24, 1998,
accused-appellant’s acquittal in Criminal Case No. 49824 is in order.
Having found that accused-appellant committed rape in Criminal Case No.
49823, and acts of lasciviousness in Criminal Case No. 49826, a
determination of the penalties therefor is in order.
With respect to Criminal Case No. 49823, the May 27, 1997 Certification of
the Calinog, Iloilo Civil Registrar which therein quotes entries on the “facts
of birth appear[ing] in our Registry of Birth” shows that Carol was born on
June 1, 1978 to Carlos Lilo (accused-appellant) and Rosa Paloma.
Unquestionably then, Carol is the daughter of accused-appellant, and was P75,000.00 as civil indemnity, P50,000.00 as moral damages, and
under eighteen years of age at the time of the commission of the rape in P25,000.00 as exemplary damages.
October 1995. Since the crime was committed in October 1995, Article In Criminal Case No. 49826, accused-appellant is found GUILTY beyond
335 of the Revised Penal Code, as amended by Republic Act 7659 reasonable doubt of ACTS OF LASCIVIOUSNESS and is hereby sentenced to
(effective December 31, 1993), thus applies. It provides: suffer the indeterminate penalty of Six (6) Months of Arresto Mayor as
Article 335. When and how rape is committed. - Rape is committed by minimum, to Six (6) Years of Prision Correccional as maximum, and to pay
having carnal knowledge of a woman under any of the following private complainant the amount of P30,000.00 as moral damages, plus
circumstances. costs of suit.
xxx Accused-appellant is ACQUITTED of the charges in Criminal Case Nos.
49824 and 49825.
The death penalty shall also be imposed if the crime of rape is
committed with any of the following, attendant circumstances: Costs de officio.
1. When the victim is under eighteen (18) years of age and the In accordance with Article 83 of the Revised Penal Code, as amended by
offender is a parent, ascendant, step-parent, guardian, relative by Section 25 of R.A. 7659, upon finality of this Decision, let the records of
consanguinity or affinity within the third civil degree, or the common-law these cases be forwarded to the Office of the President for possible
spouse of the parent of the victim; exercise of executive clemency.
x x x (Emphasis supplied.) SO ORDERED.
Hence, accused-appellant must be penalized with death.
Three justices of the Court, however, continue to maintain the
unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty.
Nevertheless, they submit to the ruling of the majority to the effect that
the law is constitutional and that the death penalty can be lawfully
imposed in the case at bar.
With respect to Criminal Case No. 49826, relationship aggravated the
commission of the acts of lasciviousness. As held in People v. Caiñgat,
under Article 15 of the Revised Penal Code, relationship is one of the
alternative circumstances and in the crimes of rape under Article 335 and
acts of lasciviousness under Article 336 of the same Code, relationship is
aggravating, hence, accused-appellant must be penalized with prision
correccional in its maximum period.
WHEREFORE, the judgment on review is hereby AFFIRMED with
MODIFICATION.
In Criminal Case No. 49823, accused-appellant, Carlos Lilo, is found GUILTY
beyond reasonable doubt of the crime of RAPE and is hereby sentenced to
death and to pay private complainant, Carol Lilo, the amount of

SECOND DIVISION
[G.R. No. 139907. March 28, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELO BATES,
accused-appellant.
MARCELO BATES, JR. (At-Large), accused.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is an appeal taken by accused Marcelo Bates from the Judgment
of the Regional Trial Court of Ormoc City (Branch 35) finding him guilty
beyond reasonable doubt of the crime of Murder and sentencing him to
suffer imprisonment of “forty years of reclusion perpetua”.
The Information states:
That on or about the 28th day of November 1995, at around 5:30 o’clock in
the afternoon, in Brgy. Esperanza, Ormoc City, and within the jurisdiction
of this Honorable Court, the above-named accused MARCELO BATES and
MARCELO BATES, JR., conspiring together and confederating with and
mutually helping and aiding one another, with treachery, evident
premeditation and intent to kill, being then armed with long bolos, did
then and there willfully, unlawfully and feloniously stab and hack to death
the person of the victim herein, JOSE BOHOLST without giving the latter
sufficient time to defend himself, thereby inflicting upon him multiple
wounds which caused his instantaneous death. Death Certificate and
Autopsy Report are hereto attached. In violation of Article 248, Revised
Penal Code.
Upon arraignment, Marcelo Bates entered a plea of not guilty.
The version of the prosecution:
Around 2:00 in the afternoon of November 28, 1995, Edgar Fuentes, Simon
Fuentes and Jose Boholst left Barangay Esperanza, Ormoc City to deliver
copra to a certain Fely Rodado at Barangay Green Valley, Ormoc City. After
delivering copra around 5:00 in the afternoon, the three men headed back
to Barangay Esperanza. While they were along a trail leading to the house
of Carlito Bates, the latter suddenly emerged from the thick banana
plantation surrounding the trail, aiming his firearm at Jose Boholst who was
then walking ahead of his companions. Jose grabbed Carlito’s right hand
and elbow and tried to wrest possession of the firearm. While the two
were grappling for possession, the gun fired, hitting Carlito who
immediately fell to the ground. At that instant, Marcelo Bates and his son
Marcelo Bates, Jr., brother and nephew of Carlito, respectively, emerged
from the banana plantation, each brandishing a bolo. They immediately
attacked Jose hacking him several times. Jose fell to the ground and rolled
but Marcelo and his son kept on hacking him. Marcelo, then, turned to
Simon and Edgar and shouted “huwes de kutsilyo”. Upon hearing the
same, Simon and Edgar ran.
Around 5:30 of the same afternoon, Concepcion Boholst, wife of Jose, was
at their home preparing dinner. Upon being informed by a certain Violeta
Fuentes that Jose was waylaid, she immediately went to the place where
the incident reportedly happened which is less than a hundred meters
from their house. There, she saw Marcelo Bates and his son Marcelo, Jr.
hacking Jose who was lying face up. She pleaded for them to stop but
they did not listen. She did not see Carlito. She went home fearing for her
life, thinking that Marcelo and his son might turn their ire on her.
The version of the defense:
Around 5:00 in the afternoon of November 28, 1995, Ponciano Sano went
to the house of Marcelo Bates. Ponciano was sent by Barangay Captain
Feliseo Sano to get a chicken from Marcelo. While they were trying to
catch a chicken, they noticed Jose Boholst, Edgar Fuentes, and Simon
Fuentes approach the house of Carlito Bates which is about twenty meters
away from Marcelo’s house. Thereafter, they saw Jose drag Carlito out of
the latter’s house while both were arguing and grappling. Marcelo
immediately ran towards Jose and Carlito but when Marcelo was about to
approach them, Jose shot Carlito with a gun. Edgar and Simon ran away.
Upon seeing Carlito fall to the ground, Marcelo attacked Jose but the latter
also fired a shot at him. However, Marcelo was able to duck and avoid
being shot. Jose was about to shoot Marcelo a second time but the latter
retaliated by hacking Jose with a bolo hitting him on his neck and causing
him to fall to the ground. Marcelo then went to the aid of his brother
Carlito but upon seeing that he was already dead, he went back to where
Jose was lying and again hacked him. Thereafter, Ponciano picked up the
gun used by Jose and surrendered it to Barangay Captain Sano. Marcelo
also surrendered himself to the said barangay captain. During the whole
incident Marcelo Bates, Jr. was not present.
Upholding the prosecution evidence, the trial court rendered its Judgment,
dated June 4, 1999, the dispositive portion of which reads as follows:
Wherefore, all the foregoing considered, the Court finds the accused
Marcelo Bates GUILTY beyond reasonable doubt of the crime of murder as
charged and hereby sentences him to suffer imprisonment of forty (40)
years reclusion perpetua after appreciating the mitigating circumstance of
voluntary surrender, and to pay the offended party the sum of P50,000.00
as indemnity and another sum of P50,000.00 as moral damages.
If the accused is a detainee, the period of his imprisonment shall be
credited to him in full provided he abides in writing by the terms and
conditions for convicted prisoners, otherwise, for only four-fifths (4/5)
thereof.
SO ORDERED.
Aggrieved, Marcelo Bates brought the present appeal. He raises the
following:
ASSIGNMENT OF ERRORS
I any defense, much less, make an aggressive move against appellant.
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT
TO THE DEFENSE INTERPOSED BY ACCUSED APPELLANT.
II
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE INCREDIBLE AND INCONSISTENT TESTIMONIES OF THE
PROSECUTION WITNESSES.
III
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION
TO PROVE ITS ATTENDANCE IN THE COMMISSION OF THE CRIME CHARGED
ON THE ASSUMPTION THAT ACCUSED-APPELLANT DID NOT ACT IN SELF-
DEFENSE.
IV
THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING PASSION AND
OBFUSCATION AS A MITIGATING CIRCUMSTANCE IN FAVOR OF ACCUSED-
APPELLANT ON ASSUMPTION THAT THE LATTER DID NOT ACT IN SELF-
DEFENSE.
Appellant claims self-defense. Under Article 11 of the Revised Penal Code,
anyone who acts in defense of his person or rights do not incur any
criminal liability provided that the following circumstances concur: First,
unlawful aggression on the part of the victim; second, reasonable
necessity of the means employed to prevent or repel it; and third, lack of
sufficient provocation on the part of the person defending himself. It is a
settled rule that when an accused admits killing the victim but invokes
self-defense, it is incumbent upon him to prove by clear and convincing
evidence that he acted in self-defense; and as the burden of the evidence
is thus shifted to him, he must rely on the strength of his own evidence
and not on the weakness of the prosecution.
After scrutiny of the evidence presented, we agree with the trial court that
self-defense was not established by appellant. He testified that he initially
inflicted only a single hack wound on the neck of Jose causing the latter to
fall to the ground. He then went to the aid of his brother Carlito but upon
finding that he was already dead, he went back to where Jose fell.
Appellant admitted that at that time, Jose was in a lying position still alive
but hardly moving. Under such a situation, Jose could have hardly put up
Despite Jose’s condition, appellant repeatedly hacked Jose. Granting that
Jose was the one who first committed unlawful aggression, appellant was
no longer justified in further inflicting wounds upon Jose because at that
time, the latter was already lying helpless on the ground. At that moment,
unlawful aggression on the part of Jose had ceased. It is a settled rule that
when unlawful aggression ceases, the defender has no longer any right to
kill or wound the former aggressor, otherwise, retaliation and not self-
defense is committed. Hence, the fact that unlawful aggression on the
part of Jose already ceased when Marcelo repeatedly hacked him rules out
the possibility of self-defense, whether complete or incomplete. Thus, the
first assigned error is without merit.
In his second assigned error, appellant questions the credibility of the
prosecution witnesses. We have time and again, held that the issue of
credibility is a question best addressed to the province of the trial court
because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses’ deportment on the stand while
testifying which opportunity is denied to the appellate courts; and absent
any substantial reason which would justify the reversal of the trial court’s
assessments and conclusions, the reviewing court is generally bound by
the former’s findings, particularly when no significant facts and
circumstances were shown to have been overlooked or disregarded which
when considered would have affected the outcome of the case. In the
present case, the trial court found the testimonies of the prosecution
witnesses to be more credible than those of the defense witnesses.
We find no cogent reason to depart from the findings of the trial court.
Prosecution witness Edgar Fuentes testified that Jose and Carlito grappled
for possession of the gun. Appellant insists that this is belied by the
absence of gunpowder burns on the wound of Carlito. Appellant cites the
medical findings and the testimony of Dr. Rogelio Mercado who conducted
the autopsy on the bodies of Jose and Carlito, to the effect that the
absence of gunpowder burns on the wound of Carlito would indicate that
he and Jose did not fight for the possession of the gun. We are not
convinced.
The finding of the physician is not certain and conclusive as it is
contradicted by no less than appellant himself when he testified, as
follows:
Q. After you noticed Jose Boholst with two companions went to your
house of your elder brother, what did you notice if there was any?
A. This Jose Boholst dragged my elder brother from the door to the yard.
Q. And how far were you at that time when you noticed that Jose Boholst
drag your brother?
A. At the same distance of about 20 meters from our house.
Q. While you said that Jose Boholst dragged your brother Carlito Bates,
were they arguing with each other?
A. Yes, sir and they were grabbling(sic).
Q. Do you know what they were arguing about?
A. I’ve heard that they were arguing about the palm of the coconut tree.
Q. What else did you know if you notice that Carlito Bates was arguing as
a matter of fact they were grabbling(sic) each other, what did you do?
A. Jose Boholst shot my elder brother.
Q. My question is, after you noticed that Jose Boholst and Carlito Bates
were arguing, what if any did you do?
A. I approached them.
Q. Why?
A. I was about to settle them down, but when I arrived and my brother
already fell down.
Q. What happened to your brother, why did he fell down?
A. Because he was shot by Jose Boholst.
Further, appellant claims that the testimony of Concepcion Boholst should
not be given credence. He argues that if Concepcion really witnessed the
killing of her husband, she should have seen the body of Carlito Bates who
was then lying dead on the ground at the place where her husband was
allegedly being hacked and stabbed. We are not persuaded.
We agree with the Office of the Solicitor General that it was natural for
Concepcion to fail to notice the body of Carlito when she was faced with
the shocking scene of her husband being hacked and stabbed to death by
appellant and his son. The Supreme Court has long recognized that
different people react differently to a given type of situation, and there is
no standard form of behavioral response when one is confronted with a
strange, startling or frightful experience. In the present case, it is perfectly
normal for Concepcion to be oblivious of the persons who were present at
the crime scene at that time because of the frightening sight that
confronted her.
Appellant points out inconsistencies in the testimonies of prosecution
witnesses Edgar and Concepcion. However, it is more apparent than real.
Edgar and Concepcion witnessed the crime at different stages of its
execution. The failure of Edgar and Concepcion to see each other at the
crime scene can be gathered from their testimonies that at the time
Concepcion arrived at the scene of the crime, Edgar, together with his
brother Simon, already left. Granting that there was indeed an
inconsistency in the testimonies of Edgar and Concepcion such is only a
minor flaw that does not affect their credibility. Both did not detract from
the main fact at issue and were consistent in positively identifying
appellant and his son as the ones who killed Jose. Discrepancies and
inconsistencies in the testimonies of witnesses referring to minor details,
and not in actuality touching upon the central fact of the crime, do not
impair their credibility.
As to the failure of the prosecution to present other witnesses, the rule is
settled that the prosecution is imbued with the discretion to choose whom
to present as witnesses. The prosecution need not present each and every
witness but only as may be needed to meet the quantum of proof
necessary to establish the guilt of the accused beyond reasonable doubt.
The testimonies of the other witnesses may, therefore, be dispensed with
for being merely corroborative in nature. This Court has ruled that the
non-presentation of corroborative witnesses would not constitute
suppression of evidence and would not be fatal to the prosecution’s cause.
Hence, the non-presentation of Violeta Fuentes, Simon Fuentes and Junior
Comesyon as witnesses for the prosecution is not fatal to its cause nor
may it be considered suppression of evidence, as their testimonies would
merely corroborate the earlier testimonies of Edgar and Concepcion.
However, we agree with the contention of the appellant that the trial court
erred in appreciating the qualifying circumstance of treachery.
The pertinent provision of Article 14 of the Revised Penal Code reads:
Art. 14. Aggravating circumstances. – The following are aggravating
circumstances:
…
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against
the person, employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make.
Under established jurisprudence, two conditions must concur to establish
treachery: (1) the employment of means of execution that gives the
person attacked no opportunity to defend himself or retaliate, and (2) the
means of execution was deliberately or consciously adopted. We have
held in a line of cases that:
[c]ircumstances which qualify criminal responsibility, such as treachery,
cannot rest on mere conjecture, no matter how reasonable or probable
such conjecture may be. They must be based on facts of unquestionable
existence. Such circumstances must be proved as indubitably as the
crime itself. Treachery as a qualifying circumstance should be established
by proof beyond reasonable doubt.
In the present case, the only evidence presented by the prosecution to
prove that there was treachery was the testimony of Edgar Fuentes that
while Jose and Carlito were grappling, he saw appellant and his son
emerge from the thick banana plantation and attack Jose with the bolos
they were carrying. This, alone, does not prove treachery. In People vs.
Albao, we held that:
As a rule a sudden attack by the assailant, whether frontally or from
behind, is treachery, if such mode of attack was coolly and deliberately
adopted by him with the purpose of depriving the victim of a chance to
either fight or retreat. The rule does not apply, however, where the
sudden attack was not preconceived and deliberately adopted but was just
triggered by the sudden infuriation on the part of the accused because of
the provocative act of the victim, or where their meeting was purely
accidental.
In People vs. Magaro, we held that:
The circumstance that an attack was sudden and unexpected to the
person assaulted did not constitute the element of alevosia necessary to
raise homicide to murder, where it did not appear that the aggressor
consciously adopted such mode of attack to facilitate the perpetration of
the killing without risk to himself. Treachery cannot be appreciated if the
accused did not make any preparation to kill the deceased in such manner
as to insure the commission of the killing or to make it impossible or
difficult for the person attacked to retaliate or defend himself.
There is nothing to indicate from the testimony of Edgar that appellant and
his son employed means and methods to insure that they will be able to
attack Jose without risk to themselves arising from any defense that Jose
might make. There is no evidence to show that they purposely remained
hidden in the thick banana plantation awaiting for the opportune time to
attack Jose with impunity.
Hence, for failure of the prosecution to prove treachery or any other
circumstance which would qualify the killing of Jose to murder, appellant
should only be held liable for the crime of homicide punishable under
Article 249 of the Revised Penal Code.
Appellant was able to prove the mitigating circumstance of voluntary
surrender, as shown by the testimony of Barangay Captain Feliseo Sano.
Passion and obfuscation may not be properly appreciated in favor of
appellant. To be considered as a mitigating circumstance, passion or
obfuscation must arise from lawful sentiments and not from a spirit of
lawlessness or revenge or from anger and resentment. In the present case,
clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by
Jose. However, a distinction must be made between the first time that
Marcelo hacked Jose and the second time that the former hacked the temporal as the maximum; and is ordered to pay the Heirs of Jose Boholst
latter. When Marcelo hacked Jose right after seeing the latter shoot at the amounts of P50,000.00 as civil indemnity for the latter’s death,
Carlito, and if appellant refrained from doing anything else after that, he P50,000.00 for moral damages and P25,000.00 as temperate damages.
could have validly invoked the mitigating circumstance of passion and SO ORDERED.
obfuscation. But when, upon seeing his brother Carlito dead, Marcelo went
back to Jose, who by then was already prostrate on the ground and hardly
moving, hacking Jose again was a clear case of someone acting out of
anger in the spirit of revenge.
Concepcion Boholst testified that the death of her husband, Jose, caused
her deep anguish and sleepless nights. The award of moral damages in the
amount of P50,000.00 is therefore justified. And pursuant to existing
jurisprudence, the heirs of the deceased are entitled to civil indemnity in
the amount of P50,000.00 as correctly awarded by the trial court plus
P25,000.00 for temperate damages, representing the expenses they
incurred for the wake and burial of the deceased.
Under Article 249 of the Revised Penal Code, homicide is punishable by
reclusion temporal. Applying the Indeterminate Sentence Law and
appreciating the mitigating circumstance of voluntary surrender which is
not offset by any aggravating circumstance, the maximum period of the
penalty to be imposed shall be taken from the minimum of reclusion
temporal which is 12 years and 1 day to 14 years and 8 months; while the
minimum period shall be taken from the penalty next lower in degree
which is prision mayor or 6 years and 1 day to 12 years.
For the guidance of both the bench and bar, it must be mentioned that the
trial court committed an error in imposing the penalty of “forty (40) years
of reclusion perpetua”. We reiterate our earlier pronouncements in a
number of cases that while Section 21 of RA No. 7659 amended Article 27
of the Revised Penal Code by fixing the duration of reclusion perpetua
from 20 years and 1 day to 40 years, reclusion perpetua remains to be an
indivisible penalty in the absence of a clear legislative intent to alter its
original classification as an indivisible penalty. Hence, in applicable cases
such as the present case, “reclusion perpetua” should simply be imposed
without specifying its duration.
WHEREFORE, the decision of the Regional Trial Court of Ormoc City,
Branch 35, is MODIFIED. Appellant Marcelo Bates is hereby found guilty
beyond reasonable doubt of the crime of Homicide and is sentenced to
suffer the indeterminate penalty of six (6) years and one (1) day of prision
mayor as the minimum to twelve (12) years and one (1) day of reclusion

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 86939 August 2, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SANTOS DUCAY and EDGARDO DUCAY, accused. SANTOS DUCAY,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Valmonte Law Office for accused-appellant.
DAVIDE, JR., J.:
Santos Ducay and Edgardo Ducay, father and son, were charged with the
complex crime of double murder and multiple frustrated murder in an
Information 1 filed on 16 October 1986 with the Regional Trial Court (RTC)
of Valenzuela, Metro Manila, allegedly committed as follows:
that on or about the 12th day of October, 1986, in the municipality of
Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill Pacita
Labos, Manuel Labos, Lina Labos-Mojica, Edwin Labos and Ma. Cristina
Labos, conspiring and confederating together and mutually helping one
another, did then and there willfully, unlawfully and feloniously, with
evident premeditation, abuse of superior strength and treachery, attack,
assault and shoot with a .45 caliber [pistol] and shotgun they were then
provided the said Pacita Labos, Manuel Labos; Lina Labos-Mojica, Edwin
Labos and Maria Cristina Labos, hitting them on their body, thereby
causing them serious physical injuries which directly caused the death of
Pacita Labos and Manuel Labos; thereby, also, with respect to Lina Labos-
Mojica, Edwin Labos and Maria Cristina Labos, performing all the acts of
execution which ordinarily would have produced the crime of murder but
which nevertheless did not produce it by reason of a cause independent of
their will, that is, the timely and able medical attendance rendered to said
Lina Labos-Mojica, Edwin Labos and Maria Cristina Labos which prevented
their death.
The case was docketed as Criminal Case No. 7792-V-6 before Branch 172
of the said court. Upon arraignment, both accused entered a plea not
guilty. 2 In due course, the trial on the merits proceeded.
The witnesses presented by the prosecution were Edwin Labos, Lina Labos,
Sgt. Ponciano Casile, Dr. Rodolfo Lizondra, Dr. Tahil Mindalano and Dr. Leo
Arthur Camagay. 3 On the other hand, the witnesses presented by the
defense were accused Santos Ducay and Edgardo Ducay, Ruben Ampuan,
Mario Abad and Cristino Mariano.
Prosecution witness Lina Labos testified that at about 5:00 o'clock in the
morning of 12 October 1986, she was sleeping in the sala at the second
floor of the house together with her husband, Manuel Labos, and their six-
month old daughter, Ma. Cristina Labos, when she was awakened by the
pounding of the door on the first floor leading to the sala. Moments later,
Santos Ducay and his son, Edgardo Ducay, appeared in the sala. Santos
was carrying a long firearm while Edgardo held a caliber .45 pistol. The two
started firing at Manuel, who was already standing albeit half asleep. Then
they shot her mother-in-law, Pacita Labos. Both Manuel and Pacita were
killed. The accused also shot her, Ma. Cristina, and Edwin Labos, her
brother-in-law, who was then coming out of the bedroom. She was hit in
the stomach and gall bladder while Ma. Cristina was hit in the right leg, left
thigh and abdomen. The accused then turned their backs and one of them
uttered "Ubos ang lahi." She was able to identify the two accused, who are
her former neighbors, because of the fluorescent light in the sala. After the
accused had left, the police came and brought the wounded to the Jose
Reyes Memorial Medical Center. 4
Edwin Labos testified that on 24 December 1985 his brother Manuel Labos
and Santos Ducay quarreled and stabbed each other; however, Santos
Ducay did not file any charges against Manuel who gave the former
P200.00 for medical expenses. 5 He also corroborated the testimony of his
sister-in-law. He heard the banging of the door and several gunshots, then
he went out of his room and saw his brother Manuel already sprawled
dead on the floor. He saw both accused shoot his sister-in-law and his
niece. 6 Edgardo then fired at him, hitting him in the right thigh, while
Santos shot his mother. 7 He was later treated at the Jose Reyes Memorial
Medical Center where he spent P13,299.53 (Exhibits "Q" to "Q-165"). They
paid P13,200.00 to Popular Memorial Chapels and P9,060.00 to Holy Cross
Memorial Chapel for the interment of his mother and brother. 8
Sgt. Ponciano Casile, a police investigator of the Valenzuela Police Station,
testified that he was ordered to investigate the incident. In the course of
his investigation, he learned that the assailants were Santos Ducay and a
yet unidentified man who, upon Lina Ducay's sworn statement given two
days later, was identified as Santos Ducay's son, Edgardo. 9
Dr. Rodolfo Lizondra, Supervising Medico-Legal Officer of the National
Bureau of Investigation (NBI), testified on the post-mortem examinations
he conducted on the cadavers of Pacita and Manuel Labos, the results of
which are embodied in two autopsy reports (Exhibits "K" and "M"). 10 He
determined the cause of death of Pacita as "hemorrhage, secondary to
shotgun wounds of the chest, abdomen and left arm," and that of Manuel
as "hemorrhage, secondary to gunshot wounds of the head and chest." Dr.
Tahil Mindalano testified regarding the injuries sustained by Lina and Ma.
Cristina Labos and the medical assistance rendered to them, 11 while Dr.
Arthur Leo Macasiano Camagay testified about the injuries sustained by
Edwin Labos. 12 Drs. Mindalano and Camagay declared that without the
medical attendance given to Lina, Ma. Cristina and Edwin Labos, said
persons would have died because of the nature of the injuries sustained by
them. 13
Per the Medico-Legal Certificates issued, Lina Labos sustained three
gunshot wounds on her "left umbilical," "left buttocks," and "lateral D/3rd
left thigh." The point of exit of the last wound was at the "anterior middle
3rd left thigh," thereby "penetrating the liver by 1.5 cm. thru and thru,
perforating the duodenum by 1 cm. thru and thru, perforating jejunom by
0.5 cm. lacerating the pancreas by 2 cm. transecting muscular branch
aorta (abdominal)" (Exhibit "A"). Edwin Labos sustained a gunshot wound
at the "middle 3rd anterior surface thigh, right" with no point of exit
resulting in "Gustilo-Anderson type III open fracture comminuted M/3rd
femur, right," (Exhibit "V") and Ma. Cristina Labos sustained three gunshot
wounds located at "lateral aspect D/3rd thigh right," "antero-medial aspect
M/3rd thigh, left" and "periumbilcal right" (Exhibit "B").
Both accused testified that they were in their house at Area 4, Valenzuela
at the time of the incident in question. At about 6:00 o'clock in the
morning, they were roused from their sleep by a friend, Martin Gabukan,
who informed them that Santos was a suspect in the shooting of the Labos
family. 14 Gabukan told Santos not to worry because "many people heard
that [the accused] were really not the one." 15 Santos was arrested on 14
October 1986 in Balagtas, Bulacan 16 while he was looking for a lawyer,
while Edgardo was taken into custody by the police while he was attending
to his father in the police headquarters. 17
Cristino Marinao, a neighbor of the Ducays, testified that at about 6:00
o'clock in the morning of 12 October 1986, Santos Ducay came and said
that he (Santos) was a suspect in the shooting incident in question. 18 The
following day, he brought Santos to the Barangay Captain, Pio Angeles,
who entered in the barangay blotter (Exhibit "6") Santos' profession of
innocence of the crime he was suspected of. On cross-examination,
Cristino stated that the distance between Area 4, where he and the
Ducays are residing, and the house of the Laboses at Area 6 (also referred
to as Area 11) is about one kilometer. 19
Ruben Ampuan, a neighbor of the Laboses, testified that at the time of the
incident and while he was still lying down, he heard gunshots. He stood up,
opened the window and saw two men leaving the house of the Laboses.
He stated that they were not the accused in this case. 20
Mario Abad Allegado testified that he was at the "tambakan" which is
about thirty meters from the scene of the crime when he heard several
gunshots. As he headed for home, he met two persons in front of the lamp
post near the house of the Eugenios heading towards Maysan Road. One of
them, a tall, thin fellow, with curly hair and mestizo features, was carrying
a firearm, while the other, whose face he did not see, 21 was shorter. He
believed that both persons were the assailants. 22 He declared that they
were not the accused whom he knows very well being his former
neighbors. 23 Upon reaching home, he heard a commotion from the house
of the Laboses. He went inside the Laboses' house and saw the wounded
family members. He asked Edwin and Lina Labos whether they recognized
their assailants and both answered that they did not. 24
Capt. Carlos Tiquia, Chief Investigator of the Valenzuela Police Station, who
was presented as the only defense witness during the hearing for the
application for bail and whose testimony was adopted in the trial on the
merits, declared that he proceeded to the crime scene after receiving a
report on the incident from the investigator assigned to the case. When he
and the investigator returned to the office, his investigator took down the
statements of the witnesses, one of whom was Erwin Labos and whose
statement was taken down at 4:00 o'clock in the morning of 14 October
1986. However, he believed that Erwin was not telling the truth so that he
personally talked to him, and at 6:00 a.m., Erwin executed a supplemental
statement (Exhibit "4") in the presence of several people including his
brother Renato Labos. This time, Erwin described one of the alleged
assailants as tall, with curly hair and mestizo features. On the basis of
such a description, Tiquia made a request for a cartographic sketch to the
PC Crime Laboratory. 25
On 29 April 1988, the trial court promulgated its judgment finding Santos
Ducay guilty beyond reasonable doubt of the crime charged but acquitting
Edgardo Ducay on ground of reasonable doubt. 26 The dispositive portion
of the decision reads:
In view of the foregoing, the Court finds guilty beyond reasonable doubt
Santos Ducay of the complex crime of double murder and multiple
frustrated murder as charged.
The penalty of reclusion temporal in its maximum period to death is
equivalent to 17 years, 4 months and 1 day to death, the minimum being
17 years, 4 months and 1 day to 20 years, the medium being reclusion
perpetua and maximum, death.
The Court, could have meted the death sentence on Santos Ducay but is
prevented from doing so by the New Constitution. Santos Ducay is,
therefore, hereby sentenced to suffer imprisonment for life, reclusion
perpetua which is the medium period of the penalty provided by law, and
all the accessory penalties provided by law, to indemnify the heirs of the
victim Pacita Labos in the sum of P30,000.00 and the heirs of Manuel
Labos P30,000.00; to indemnify the victims Edwin Labos in the sum of
P13,299.53 as reimbursement of medical expenses, and the sum of
P4,500.00 as lost earnings for the period from October 12, 1986 to July
1987; to indemnify Lina Labos and Ma. Cristina Labos in the total sum of
P10,000.00 as reimbursement of medical expenses; and to pay the costs
of suit.
The Court finds Edgardo Ducay not guilty of the crime charged on ground
of reasonable doubt and is hereby acquitted. The Jail Warden of
Valenzuela, Metro Manila, is hereby ordered to release Edgardo Ducay
from detention unless held for any other lawful cause. 27
In convicting Santos Ducay, the trial court said:
The Court never doubts the participation of Santos Ducay not only on the
basis of the positive identification made by surviving victims, Lina and
Edwin Labos, the motive Santos Ducay had to avenge the assault done on
him by Manuel Labos, but also because his positive identification sweeps
aside altogether his defense � that of alibi � a very weak defense in the
light of the overwhelming evidence against him.
xxx xxx xxx
From the evidence thus adduced the Court is convinced beyond
reasonable doubt that it was Santos Ducay who was one of the persons
who conspired with another in killing the victims, Manuel Labos, Pacita
Labos, and in trying to kill Lina Labos, Maria Cristina Labos and Edwin
Labos, but was frustrated, The evidence of evident premeditation, abuse
of superior strength and treachery, were clearly shown by the prosecution
when it proved convincingly to the Court that considering the time of the
attack, 5:00 at dawn, evident premeditation is clear especially if the
testimony of Edwin Labos will be considered that months previous to this
attack, Santos Ducay had a quarrel with one of the victims shot to death.
There was abuse of superior strength and treachery because the victims
were asleep at the time of the attack and were therefore unprepared and
unarmed for the attack. They had no chance whatsoever to fight back, the
six months baby Ma. Cristina Labos especially. 28
The trial court expressed the view that two murders and three frustrated
murders were committed, or that there are as many crimes as there are
victims in this case because "the trigger of the gun used in committing the
acts complained of was pressed in several instances and not in one single
act. However, it did not impose the corresponding penalties therefor
"because the information to which the accused pleaded is only one crime
of double murder and multiple frustrated murder." 29
On 13 May 1988, Santos Ducay filed a Partial Motion For Reconsideration
And/Or New Trial. 30 He sought the admission of the alleged result of a
paraffin test conducted on him on 13 October 1986, or a day after the
incident, which shows that he was found negative for powder burns. For
lack of merit, the trial court denied the motion in its Order of 24 May 1988.
31
Santos Ducay, hereinafter referred to as the Appellant, then filed on 7 June
1988 a Notice of Appeal. 32
In his "Brief for the Defense" filed on 24 September 1992, 33
the appellant
raises the following assignment of errors:
1. THE TRIAL COURT ERRED IN HOLDING AS "POSITIVE" PROSECUTION
WITNESSES EDWIN LABOS AND LINA LABOS' IDENTIFICATION OF ACCUSED;
HENCE, IT ERRED WHEN IT REJECTED ACCUSED'S DEFENSE OF ALIBI.
2. THE TRIAL COURT ERRED IN DENYING ACCUSED'S PARTIAL MOTION FOR
RECONSIDERATION AND/OR NEW TRIAL FOR THE ADMISSION OF THE
PARAFFIN EXAMINATION ON ACCUSED A DAY AFTER THE INCIDENT FINDING
HIM NEGATIVE OF POWER (sic) BURNS.
3. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED.
In the first assigned error, the appellant attacks the credibility of
prosecution witnesses Lina and Edwin Labos and alleges that their
identification of the appellant is vague and highly dubious. To buttress this
claim, he refers this Court to his testimony that a neighbor by the name of
Martin Gabukan told him that while the victims were the hospital, he
(Martin) overheard Edwin Labos say that he did not really see the
appellant and Edgardo Ducay; that Edwin only happened to mention the
name of the appellant when he has asked by the police about their
enemies in their place. The appellant then concludes that the crime was
imputed upon him not because he was seen at the scene of the crime but
because of the motive alleged, namely, that he and Manuel Labos had an
altercation on 24 December 1985. As to Lina Labos, the appellant
maintains that she gave her statement only on 14 October 1986 or two
days after the occurrence of the incident; she thus had sufficient time to
concoct a story and implicate the appellant and Edgardo after she had
talked with her brother-in-law, Edwin, and her father-in-law, Jesus Labos.
The appellant further claims that since the trial court did not believe Lina
and Edwin's testimonies that they positively identified Edgardo Ducay,
then following the maxim "falsus et (sic) uno, falsus et (sic) omnibus," 34 it
should not have also believed their testimony as regards the appellant. He
also faults the trial court for rejecting the supplementary statement
(Exhibit "4") of Erwin Labos, brother of Edwin Labos, and Erwin's
"contemporaneous" statement to Edgar Ducay: "Kuya pasensiya ka na,
naturo kita noon una, hindi naman ikaw," allegedly absolving the accused
and pointing to a tall, mestizo and curly-haired man as one of the
assailants, which statement was allegedly confirmed by Sgt. Casile and
Capt. Tiquia and made as the basis of the cartographic sketch by the PC
Crime Laboratory. According to the appellant, these declarations of Erwin
are declarations against interest and are part of the res gestae. Finally, the
appellant asserts that the evidence for the prosecution is weak because no
disinterested witness was presented despite the fact that the incident
occurred in a thickly populated area. He also contends that the
prosecution suppressed evidence by failing to present Erwin Labos as a
witness.
These claims are without merit.
A careful evaluation of the records and the evidence adduced by the
prosecution discloses that the appellant had been positively identified by
Lina and Erwin Labos. In his sworn statement (Exhibit "H") executed barely
four hours after the incident and while he was still in the emergency room
of the hospital, Edwin explicitly declared that the appellant was one of the
assailants. This sworn statement was spontaneously given at the time he
was hovering between life and death. He had no opportunity then to
contrive or fabricate a story. The appellant is the only one identified
therein by Edwin. Thus:
xxx xxx xxx
TANONG Bakit ka narito ngayon sa loob ng Dr. Jose Reyes Hospital,
Emergency Room, Manila?
SAGOT Binaril po ako.
T Sino and bumaril sa iyo?
S Ang kasama ni Santos Ducay po nakatira sa Area-4, Family Compound,
Karuhatan, Val. M.M.
T Kilala mo ba ang bumaril sa iyo na kasama ni Santos?
S Kong makikita ko muli.
xxx xxx xxx
T Paano mo nasabi na kasama ni Santos Ducay and bumaril sa iyo?
S Nakita ko po si Santos Ducay na ang hawak niya shotgun at siya ang
bumaril sa kuya ko, Manuel, nanay ko, Pacita, Ate ko, Lina at bata na si
Maria Cristina.
T Dati mo bang kilala si Santos Ducay?
S Opo.
T Paano mo siya nakilala?
S Dati po siyang (Santos) kapitbahay namin at lumipat as Area-4 Family
Compound, Karuhatan, Val., M.M. 35
In court, Edwin unhesitatingly pointed to the appellant as one of the
assailants. 36
Lina Labos also identified the appellant as one of the malefactors both in
her handwritten sworn statement, Exhibit "E," 37 executed on 14 October
1986 or two days after the incident, and in her court testimony. 38 That her
statement was executed two days after the incident does not perforce
affect her credibility. With the three gunshot wounds she sustained and the
thought of the death of her husband and mother-in-law and the serious
injuries of her daughter and brother-in-law, it would be too much to expect
from her that physical and emotional fortitude to forthwith give her
statement as what Edwin did. Delay or vacillation in making a criminal
accusation does not necessarily impair the credibility of a witness if such
delay is satisfactorily explained. 39 In any case, the speculation that she
could have contrived her testimony after having talked with her father-in-
law and brother-in-law is wholly unsupported by evidence.
We agree with the appellee that the alleged statements made by Martin
Gabukan to the appellant, which the latter related in court, is hearsay and
has little, if any, probative value. Counsel for the appellant knew, or ought
to have known, that this was so. Yet, the defense did not present Martin as
witness.
Nor can we subscribed to the proposition that since the trial court did not
give credit to Edwin and Lina's testimonies that they positively identified
Edgardo, it should, pursuant to the maxim "falsus in uno, falsus in
omnibus," likewise disregard their testimonies as against the appellant and
accordingly acquit him. In People vs. Dasig, 40 this Court stated that the
maxim is not a mandatory rule of evidence, but rather a permissible
inference that the court may or may not draw. In People vs. Pacada, 41 we
stated that the testimony of a witness can be believed as to some facts
and disbelieved as to others. And in People vs. Osias, 42 we ruled that:
It is perfectly reasonable to believe the testimony of a witness with respect
to some facts and disbelieve it with respect to other facts. And it has been
aptly said that even when witnesses are found to have deliberately
falsified in some material particulars, it is not required that the whole of
their uncorroborated testimony be rejected but such portions thereof
deemed worthy of belief may be credited.
The primordial consideration is that the witness was present at the scene
of the crime and that he positively identified [the accused] as one of the
perpetrators of the crime charged . . . .
Professor Wigmore gives the following enlightening commentary:
It may be said, once for all, that the maxim is in itself worthless�first, in
point of validity, because in one form it merely contains in loose fashion a
kernel of truth which no one needs to be told, and in the others it is
absolutely false as a maxim of life; and secondly, in point of utility,
because it merely tells the jury what they may do in any event, not what
they must do or must not do, and therefore it is a superfluous form of
words. It is also in practice pernicious, first, because there is frequently a
misunderstanding of its proper force, and secondly, because it has become
in the hands of many counsel a mere instrument for obtaining new trials
upon points wholly unimportant in themselves. 43
The trial court did not err in rejecting the supplementary statement
(Exhibit "4") of Erwin Labos, brother of Edwin Labos, and his alleged
contemporaneous statement to Edgardo Ducay. Erwin Labos was not
called by the defense as its witness�even as a hostile one. Whatever
declaration he made to any party, either written or oral, is thus hearsay.
The prosecution seasonably objected to the admission of Exhibit "4." 44
Besides, as noted by the prosecution, this document is not under oath
while his first statement implicating the appellant is duly subscribed and
sworn to. The defense should have presented Erwin as a witness if indeed
it was convinced that Exhibit "4" expresses the truth. There is no showing
that this could not have been done because Erwin was not available. His
brother, Edwin, testified that Erwin was staying with his father in Escolta.
45
This information should have been utilized by the defense to have
compulsory process issued to bring Erwin to court.
Instead, the defense imputes suppression of evidence upon the
prosecution in not presenting Erwin Labos as its witness. It is settled that
suppression of evidence is inapplicable in a case where the evidence is at
the disposal of both the prosecution and the defense. 46 Besides, the
prosecution had no cogent reason for presenting Erwin since there is no
showing that he was in the house when the incident occurred. On the
other hand, the defense needed his testimony for if, indeed, he should
affirm his supplemental statement, he may somehow enhance the theory
of the defense.
We do not likewise agree with the appellant that Erwin's alleged statement
to Edgardo Ducay: "Kuya pasensiya ka na, naturo kita noon una, hindi
naman ikaw," uttered immediately after he made his supplemental
statement, is a part of the res gestae and thus an exception to the hearsay
rule.
The rule on spontaneous statements as part of the res gestae is stated in
Section 42, Rule 130 of the Rules of Court: "statements made by a person
while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be
given in evidence as part of the res gestae. . . . ." There are three
requisites for the admission of spontaneous statements as evidence of the
res gestae: 1) that the principal act, the res gestae, be a startling
occurrence; 2) that the statements were made before the declarant had
time to contrive or devise; and 3) that the statements must concern the
occurrence in question and its immediately attending circumstances. 47
The rationale for the exception lies in the fact that a statement made
under the stress of an exciting event or condition tends to ensure that the
statement is spontaneous and, therefore, trustworthy; and the likely
proximity in time between the event or condition and the statement
minimizes the possibility of a memory problem. 48 Erwin's alleged
statement to Edgardo Ducay does not refer to the incident in question but
rather to his prior statement (not the supplemental statement) implicating
Edgardo Ducay. Furthermore, the alleged "contemporaneous" statement
was made two days after the shooting incident. In no way can it be said
that Erwin was under the stress of an exciting event or condition.
Nor do we find merit in the appellant's argument that the prosecution's
evidence is weak because unlike the defense, it did not present any
disinterested witness. He suggests that since the place where the incident
happened is thickly populated, there were many people who saw the
gunmen and who could have pointed to the accused if they were the ones
who committed the crime considering that they were familiar to the
residents of the area. In the first place, it was not shown that at the time
the incident occurred, many people were already awake and were able to
see the gunmen. In the second place, assuming that it was so shown, the
determination of who should be utilized as witnesses by the prosecution is
addressed to the sound discretion of the prosecutor handling the case. 49
That the prosecutor did not present any disinterested witness does not
lessen the strength of the prosecution's case, which is anchored on the
testimonies of Edwin and Lina Labos, who were themselves eyewitnesses
and victims of the crime.
In the ultimate analysis, the first assigned error involves the credibility of
witnesses. It is settled that when the issue is one of credibility of
witnesses, appellate courts will generally not disturb the findings of the
trial court considering that the latter is in a better position to decide the
question, having heard the witnesses themselves and observed their
deportment and manner of testifying during the trial unless it has plainly
overlooked certain facts of substance that, if considered, might affect the
result of the case. 50 We find no reason to depart from this rule in this case.
In his second assigned error, the appellant faults the trial court for denying
his motion for new trial on the ground of newly discovered evidence
consisting of Chemistry Report No. O-1630-86 of the PC Crime Laboratory
Service, the result of the paraffin test conducted on Santos Ducay on 13
October 1986 or the day after the incident on question, which allegedly
shows that "both hands of the [appellant] gave NEGATIVE result to the test
for gunpowder residue (nitrates)." 51
One of the grounds for a new trial mentioned in Section 2, Rules of Court is
the discovery of new and material evidence. The requisites therefor which
must concur are: (1) that the evidence was discovered after the trial; (2)
that such evidence could not have been discovered and produced at the
trial even with the exercise of reasonable diligence; and (3) that such
evidence is material, not merely cumulative, corroborative or impeaching,
and is of such weight that, if admitted, it will probably change the
judgment. 52 In the present case, the appellant was subjected to a paraffin
test the day after the crime was committed. Certainly, he knew that the
findings of such test would be forthcoming. He should have asked for the
result of the test to find out if it is exculpatory, in which case he could
have presented it during the hearing of his application for bail or, at the
latest, during the trial on the merits. In any event, the chemistry report
cannot be considered as newly discovered evidence since it was already
existing even before the trial commenced and could have been easily
produced in court by compulsory process. The appellant either did not
exercise reasonable diligence for its production or simply forgot about it.
Forgotten evidence is, of course, not a ground for a new trial. 53 Moreover,
the result of the paraffin test conducted on the appellant is not conclusive
evidence that he did not fire a gun. 54 It is possible for a person to fire a
gun and yet be negative for the presence of nitrates, as when he wore
gloves or washed his hands afterwards. 55 The trial court, therefore,
correctly denied the motion for new trial.
The testimonies of the witnesses and the nature of the wounds suffered by
the victims show that there were two different firearms used by two
assailants, one of whom is the appellant. The crimes committed were not
caused by a single act nor were any of the crimes committed as a
necessary means of committing the others. In this case, there are as many
crimes committed as there are victims. The trial court correctly ruled that
there was no complex crime "considering that the trigger of the gun used
in committing the acts complained of was pressed in several instances and
not in one single act." It is settled that when various victims expire from
separate shots, such acts constitute separate and distinct crimes. 56
However, the trial court erred when it ruled that "(i)t cannot, however,
impose the corresponding penalty of the crime committed against each
victim because the information to which the accused pleaded is only one
crime of double murder and multiple frustrated murder." The information
in this case, although denominated as one for a complex crime, clearly
charges the accused with five different criminal acts. It states: "the above-
named accused, with intent to kill Pacita Labos, Manuel Labos, Lina Labos-
Mojica, Edwin Labos, and Ma. Cristina Labos, . . . did then and there . . .
attack, assault and shoot with a .45 caliber [pistol] and shotgun they were
then provided the said Pacita Labos, Manuel Labos, Lina Labos-Mojica,
Edwin Labos and Ma. Cristina Labos, . . . ." The appellant and his co-
accused did not move to quash the information on the ground of
multiplicity of charges. At no other time thereafter did they object thereto.
They therefore waived such defect 57 and the trial court thus validly
rendered judgment against them for as many crimes as were alleged and
proven. 58
The crimes committed by the appellant and his companion, which were
proven beyond reasonable doubt are: (1) two counts of murder with the
qualifying circumstance of treachery since the attack on the victims was
so sudden and at a time when the victims were barely awake, thus giving
them no chance whatsoever to defend themselves; and (2) three counts of
frustrated murder. Conspiracy 59 between the assailants was duly proven.
Together they came to the house of the victims, simultaneously attacked
them, and then, together again, they fled. Before fleeing, one of them
even exclaimed "Ubos ang lahi." These acts sufficiently established a
common plan or design to commit the crimes charged and a concerted
action to effectively pursue it. Hence, the act of one is the act of all. 60
We do not, however, agree with the trial court that evident premeditation
was sufficiently established. Although Manuel Labos stabbed the appellant
on 24 December 1985, there is paucity of evidence as to when the latter
determined to kill the former and any member of his family and as to acts
manifestly indicating that he has clung to his determination. 61
Nevertheless, the aggravating circumstance of dwelling which was proved
without objection from the defense should be appreciated against the
appellant since the victims were attacked and shot inside their own
dwelling. The assailants displayed greater perversity in their deliberate
invasion of the home of the Laboses. 62
Under Article 248 of the Revised Penal Code, the crime of murder is
punishable by reclusion temporal maximum to death. The maximum of the
penalty should be imposed in view of the presence of the aggravating
circumstance of dwelling which is not offset by any mitigating
circumstance. However, the imposition of the death penalty is prohibited
by the Constitution; 63 hence, the proper imposable penalty would be
reclusion perpetua. The penalty for the crime of frustrated murder is the
penalty next lower in degree that the prescribed for murder, 64 that is,
prision mayor medium as maximum to reclusion temporal medium. 65
The appellant is entitled to the benefits of the Indeterminate Sentence Law
in the frustrated murder cases. Thus, he may be sentenced in each of the
three frustrated murder cases to an indeterminate penalty ranging from
eight (8) years and one (1) day of prision mayor medium as minimum to
fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium as maximum.
ACCORDINGLY, the challenged judgment of Branch 172 of the Regional
Trial court of Valenzuela, Metro Manila in Criminal Case No. 7792-V-6 is
AFFIRMED subject to the modifications herein indicated. As modified,
appellant Santos Ducay is convicted of (a) two crimes of murder for the
death of Pacita Labos and Manuel Labos and is accordingly sentenced to
reclusion perpetua for each death, with the indemnity in each crime
increased from P30,000.00 to P50,000.00 in conformance with the current
policy of this Court; and (b) three crimes of frustrated murder committed
on Lina Labos, Ma. Cristina Labos and Edwin Labos, and is hereby
sentenced in each crime to an indeterminate penalty of eight (8) years
and one (1) day of prision mayor medium as minimum to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium as
maximum.
Costs against the appellant.
SO ORDERED.